COURT

of
CONSCIENCE
A SOCIAL JUSTICE JOURNAL ISSUE 7, 2013
THE ROLE OF THE SOCIAL JUSTICE PORTFOLIO IS TO PROMOTE THE SOCIAL CONSCIENCE OF
LAW STUDENTS THROUGH EDUCATION, ADVOCACY AND COMMUNITY INVOLVEMENT. WE
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.
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, writen or read, we dissect the English language with a rigour, detail and
fnesse unseen in other professions. We use words and expression to make an argument,
to deconstruct an opponent and to stand up for justce. The essence of law lies in the
interpretaton of a word, the alignment of a phrase and the ability to artculate 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 diference.
Yet what use is a word without a good conscience, moral or ethic to uphold it? Law school
is a tme for establishing values, for learning about our place within the world and for
applying rigour and critcal thinking to the work we perform. It is about building confdence
to trust our instncts 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 critque the
black leter, think beyond it and communicate our insights in the hope of awakening the
conscience of others.
Court of Conscience, now an ALSA award-winning journal, is an arena for thought, refecton
and consideraton of major issues and injustces in Australia and around the world. It is a
forum to explore and challenge the preconceived ideas of justce, to share areas of interest
and passion, and express opinions on unique and interestng topics. Congratulatons to the
Court of Conscience team, led by Katerina Jovanovska, for their excellent work in producing
this outstanding publicaton undoubtedly one of the fnest editons yet.
In 2013, Court of Conscience is daring and unconventonal. In the coming pages, we
invite you to read about the rights of tyrants in internatonal law, sex worker reform
and neo-imperialism in the Middle East. These artcles advocate justce for voices ofen
silenced. They are thought-provoking and enriching. As we seek to push the bounds of
justce and elevate ourselves into a higher court of conscience, we hope that you can
enjoy the proceeding artcles and are inspired, in turn, to respond positvely to the
demands of social justce.
Jacqueline Fetchet
Vice-President Social Justce
UNSW Law Society
EDITOR-IN-CHIEF
Katerina Jovanovska
EDITORIAL TEAM
Madeleine James
Rohan Muscat
Sharanya Srikanth
LEGAL RESEARCH TEAM
Josh Beale
Leslie Phung
Miles Ma
DESIGN & ILLUSTRATION
Niki Baados, unless otherwise stated.
www.niquary.com/design
VICE-PRESIDENT, SOCIAL JUSTICE
Jacqueline Fetchet
PRESIDENTS, UNSW LAW SOCIETY
Nathan Huynh & Kara Grimsley

MONIQUE DAM & YING CHIN
WORLD COURTS OF WOMEN: A TRANSFORMATIVE
VICTIM-BASED APPROACH TO GENDER JUSTICE
PRUE VINES & MATTHEW BUTT
RUNNING OUT OF COMPENSATION MONEY:
WHIPPING AWAY THE SOCIAL SECURITY BLANKET?
FARAH ABDEL
A NATION SHOULD NOT BE JUDGED BY HOW IT TREATS
ITS HIGHEST CITIZENS, BUT ITS LOWEST ONES
MICHAEL LEGG
FEDERAL COURT FEES UP ACCESS TO JUSTICE DOWN
BRITTNEY RIGBY
THE FACELESS BOAT PEOPLE
DANIEL REYNOLDS
THE ICRC CUSTOMARY LAW STUDY: A SMALL STEP
TOWARDS MORE HUMANE WARTIME PRACTICES
MARIE ISKANDER
HISTORY REPEATING: THE PERSECUTION OF
HOMOSEXUAL MEN IN MODERN-DAY EGYPT AND THE
STRUGGLE TO RECOGNIZE SEXUAL ORIENTATION AS A
GROUNDS OF PERSECUTION UNDER THE ROME STATUTE
SHARANYA SRIKANTH
CREATING VALUE THROUGH A MUTUALLY
BENEFICIAL RELATIONSHIP
OLIVER MOORE
THE RIGHTS OF TYRANTS
AMBER KARANIKOLAS
SEX WORK, AUTONOMY AND THE INJUSTICES
OF CRIMINALISATION
WILLIAM SHRUBB
TRANSSEXUALS AND THE LAW
JOSH BEALE
RACE AND RIVALRY: NEOIMPERIALISM, INTERVENTION
AND THE CIVILISING MISSION POST-1991
COLIN FONG
SUB-ORDINATION 21 YEARS LATER
TARANG IMMIDI
(DIS)ADVANTAGE IN LOWER AND HIGHER COURTS


CHANTAL TANNER
WHO HOLDS THE SCALES OF JUSTICE IN
MATTERS OF PUBLIC INTEREST?
CONTENTS
I welcome you to the seventh editon of Court of Conscience.
Court of Conscience 2013 will see UNSW students and Faculty of
Law members grapple with legal, moral and ethical issues that
are thought provoking and demand our atenton as students
of the law. The beauty of this realm of our legal educaton is
that solutons to the issues identfed within Court of Conscience
can only come from discussion. Only through sparking debate
and meaningful discourse about the issues that need more
than a mere applicaton of law will the necessary creatve and
conscionable solutons manifest.
At UNSW Law, we lead this debate. Questons of social justce are
constantly being thrown our way, and we are forced to ponder
the fairness of the situatons taking place in our courts and in our
community. A law degree from UNSW means we are qualifed not
only in the law itself, but the art of questoning why something
is happening, whether it should be happening, and formulatng
plans as to how to fx it in our capacity as law students and
legal practtoners.
This is the ethos that permeates Court of Conscience. I hope you
read the artcles with the knowledge that you have the ability
to make a diference. The pages to come pose some difcult
questons - questons that are worthy of spending some tme
trying to answer. Rather than developing an immunity to the idea
that some people will sufer at the hands of justce, I encourage
you to use your privileged positon of being intmately acquainted
with the operatons of the law. Ask yourself whether it is fair,
right or reasonable to punish those whom the legal system treats
diferently or unfavourably. Our courts are not only courts of law,
but also courts of conscience. I hope the artcles to come will
inspire you to turn your mind to social justce, and advocate for
fairness, equality and the just applicaton of the law.
I hope you enjoy the 2013 editon.
Katerina Jovanovska
EDITOR-IN-CHIEF
Court of Conscience 2013
UNSW Law Society
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30
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52
55
63
67
75
80
WORLD COURTS OF WOMEN:
A TRANSFORMATIVE VICTIM-BASED
APPROACH TO GENDER JUSTICE
The World Courts of Women is a transnatonal feminist project of civil society which aims to
provide a public forum for women who are excluded from ofcial state-based and internatonal
legal and politcal insttutons. Initally coordinated by the Asian Womens Human Rights
Council,
1
these courts are currently organised under the guidance of Corinne Kumar; Secretary
General of EI Taller Internatonal, a global NGO commited to sustainable development and
womens human rights.
2
To date, at least 30 such courts have been held in the Asia-Pacifc,
Middle East, Africa and Central America.
3
World Courts of Women strive to include the
experiences and perspectves of women which are ofen absent from dominant historical,
legal and politcal narratves. In providing a symbolic court of testmony for women from
diferent parts of the world to name the crimes commited against them, victms and survivors
can make their voice have their voices heard. The Courts are distnctly democratc, allowing
victms to describe crime and violence in their own terms and thereby broadening the scope
for diferent visions of injustce to be seen. Despite their lack of ofcial authority, the Courts
gain legitmacy through their commitment to a popular sovereignty model. The Courts have
also played an important role in helping to build transnatonal solidarity and strengthening
international and local womens rights activism.
BY MONIQUE DAM & YING CHIN
5
I. AN UNCONVENTIONAL
APPROACH
World Courts of Women have been described
as a form of protest against forms of
violence against women for which there is
[sic] no legal remedies within local, natonal,
or internatonal judiciary systems.
4
Some
might proclaim that court is somewhat of a
misnomer as the Courts are highly symbolic
and functon more as a forum of testmony
for the voices of the women victms and
survivors of violence. This symbolism is
self-acknowledged as the Courts state that
their aim is to weave together the objectve
reality...with the subjectve testmonies of
the women; the personal with the politcal.
5

It is these women who name the crimes
commited against them, which may not be
generally recognised as a crimes under the
law, refectng the botom-up nature of the
courts and their radical democracy roots.
The Courts seek to challenge the dominant
human rights discourse in pursuit of a new
generaton of womens human rights by
grounding themselves in the lived everyday
experiences of women.
The formalism which traditionally endows
courts with legitimacy is not prioritised;
an expert Council of Wise Women and
Men presides over the Court from an
un-elevated platform, and witnesses
and audience members are not spatially
compartmentalised.
6
The jury is composed
the Courts of Women permeate not only
conduct of process, but also their thematc
consideratons the Courts address a broad
range of violence in an atempt to avoid
privileging some experiences of violence
over others. This is partcularly important
in a society where sexual violence against
women has tended to receive more atenton
at the internatonal level,
9
a fxaton perhaps
coloured by stereotypes of female passivity
and vulnerability that in turn infuence law
enforcement, legal bodies and social policy.
10

This is refected in the Women, Peace and
Security agenda of the United Natons of
which thematc resolutons have focused on
sexual violence.
In contrast to this, the World Court of Women
against War, for Peace, held in Capetown,
South Africa in 2001, adopted a much
of experts of diverse backgrounds such as
social activists, academics, lawyers, writers
and historians. For example, the Jury for the
2001 Court of Women for Peace, Against
War held in South Africa included former
UN ambassador Mahjid Rahnema, former
UN assistant Secretary General Dennis
Halliday, human rights author Aicha El
Channa and notably Aung San Suu Kyi as
an honorary member (at that time, she
was still under house arrest and therefore
unable to be present).
7

Another unique feature of the Courts is the
incorporaton of testmonies of resistance and
the emphasis placed on the need to listen
to the voices of the women who resist the
violence. Part of the World Court of Women
Against War, for Peace was dedicated to
listening to testmonies of women central to
movements for peace in Jerusalem (Women
in Black), Rwanda (Widows of Rwanda) and
South Africa (Ant-Apartheid actvists). The
Courts of Women also facilitate interacton
between local NGOs and actvists through
workshops, seminars and roundtables.
8

The aim is to build solidarity as a way of
strengthening the botom-up struggle for
womens human rights.
The Courts accept song, dance and visuals
as a means of testmony. This is partly due
to a concern to prevent re-traumatsaton
of the victms but it is also an efort to be
inclusive, in recogniton of the illiteracy
of some women. The inclusiveness of
broader view of the violence commited
against women in confict and in post-confict
contexts.
11
Forty women from the Philippines,
Bosnia, Lebanon, Rwanda, Cambodia, Sierra
Leone, South Africa and Afghanistan gave
testmonies to the Court comprising of nearly
4000 women and men from provinces of
South Africa and 62 diferent countries. The
themes of the Court included the roots of
war and confict, the war of borders and
boundaries, militarisaton, the war against
women, the war of exclusion, racism
and the war against human security and
the globalisaton of poverty.
12
The Court
explored alternatve notons of justce and
evaluated the efcacy of transitonal justce
legal insttutons such as the Truth and
Reconciliaton Commission and Internatonal
In relation to violence against women,
it is problematic that international
humanitarian law maintains a false distinction
between times of war and times of peace.
War Crimes Tribunals. By providing a space
for women to artculate their experiences
of war and post-confict situatons, the
interconnectedness of issues of poverty,
lack of social security, peace building and
post-war reconstructon emerged. It thus
facilitates analysis of the socio-economic
dimensions of structural inequality and
their impact on gender security, actng as
an impetus for new visions of peace that
incorporate gender justce.
13
II. REDEFINING WHAT
CONSTITUTES VIOLENCE
The manner in which Courts of Women
extend their focus beyond the traditonal
parameters of discussions about female
violence can further be seen through the
Courts consideraton of diverse forms of
violence. In the case of the 2001 World
Court of Women Against War, for Peace,
sessions were held on wars as genocide in
relaton to rape as part of ethnic cleansing
in Bosnia, wars without borders which
dealt with trafcking in Cambodia, war
against civilisatons which considered the
Stolen Generaton in Australia, and wars
against women which examined dowry
murders in India. The Court also examined
the use of land mines in Cambodia and
Agent Orange in Vietnam, a demonstraton
of the Courts divergence from the fxaton
with sexual violence at the internatonal
level to examine a broader spectrum of
violence experienced by women during
armed confict. The Court also dealt with
violence against women outside of periods
8 7
of armed confict, refectng the way in which
women experience violence contnuously
even in tmes of peace; including acts of
female genital mutlaton, fundamentalism
and witch huntng. The Court of Women
against War, for Peace demonstrates how
the Courts of Women strive to encompass a
broad range of violence to avoid the exclusion
of certain experiences of violence.
World Courts of Women also seek to prevent
the potental re-victmisaton of female
victms of gender crimes in the context
of formal, top-down legal proceedings. In
further redefning what consttutes violence,
the Courts adopt a much broader approach
to what comes into the ambit of a crime
and a human right than mainstream
perceptons. For instance, the Courts speak of
the violence of neoliberal globalisaton where
the deprivaton of people of their economic,
social and cultural rights is embedded in
structures, rendering perpetrators unclear.
Courts of Women have previously challenged
the legitmisaton of processes in the name
of natonal security, law and order, and
progress such as colonisaton, globalisaton
and militarisaton, which are perceived as
consttutng wars perpetrated against women.
Courts of Women thus play a valuable role in
ensuring that womens lived experiences of
politcal, social and economic inequalites are
not overlooked, in giving them ownership of
their experiences of violence as survivors and
empowerment through resistance.
III. EMPOWERMENT
THROUGH OWNERSHIP
In conventonal criminal courts, victms are
invited merely to bear testmony to the crime
and their status as the victm is ofen not
directly acknowledged. It is also problematc
that criminal charges are ofen framed
in language promotng the restoraton of
the previous patriarchal order, rather than
challenging the status quo. In relaton to
internatonal humanitarian law, Dixon argues
that the priority is to obtain convictons
for breaches of abstract legal norms rather
than convictons for the crime of what the
accused actually did to the victm.
14
In the
case of Kunarac,
15
the Internatonal Criminal
Tribunal for the Former Yugoslavia (ICTY)
was unwilling to recognise the collectve
subjectvity of Muslim women as a relevant
civilian populaton, preferring to fnd the
atack as directed against the Muslim civilian
populaton generally.
16
This decision reveals
the limited potental of the internatonal
criminal process to recognise the specifc
and gendered harms sufered by victms
of war crimes.
17
To counter this, World
Courts of Women seek to empower victms
by allowing victms to name the crimes
commited against them thereby enabling
greater ownership of the process. The
Courts recognise the importance of public
acknowledgement of victmisaton in the
provision of healing and closure.
18
The transformatve potental of the Courts is
also found in their subversion of traditonal
dichotomies and assumptons. Artcle 27 of
the Fourth Geneva Conventon states:
[w]omen shall be especially protected
against any atack on their honour, in
partcular against rape, enforced prosttuton,
or any form of indecent assault
19
; the
language of which refects the values of a
patriarchal society. This characterisaton
of rape and other forms of sexual violence
as atacks against the honour of women
implies that honour is something lent to
women by men and that a raped woman
is dishonoured. The trickle-down efect
this can have on natonal insttutons is
signifcant; for instance, the phrase honour
is used in many natonal military guides.
20

The failure of such internatonal instruments
to portray sexual violence as a violent crime
that violates bodily integrity presents a
serious obstacle to addressing crimes of this
nature against women. The protectve, rather
than prohibitve, nature of the provisions
indirectly reinforces the trivialisaton of such
ofences.
21
World Courts of Women can
thus be seen as a vehicle through which to
challenge such patriarchal assumptons which
are embedded in law.
In relaton to violence against women, it is
problematc that internatonal humanitarian
law maintains a false distncton between
tmes of war and tmes of peace.
Mainstream legal discourse can also be seen
to operate around a hierarchy of harms,
in which divisions are created between
ordinary and partcularly egregious
violence; where the later category is more
ofen perceived as meritng redress.
22
This
artfcial separaton results in the tendency
for violence commited against women to fail
to ft narrow legal categories that dominate
general understandings of serious human
rights violatons, with the efect that normal
pervasive sexual and physical violence
against women is simply not counted in the
overall narratve of confict or regime change
(emphasis added).
23

IV. CONCLUSION
This artcle has atempted to demonstrate
the potental of World Courts of Women to
reinvigorate feminist concerns in the public
sphere. The Courts have enabled women
who are ofen excluded by dominant legal
and politcal insttutons to give testmony of
their experiences of violence in a multplicity
of unconventonal ways such as through
song, dance and visuals, resultng in greater
inclusiveness. By enabling women to name
the crimes commited against them in their
own terms and rejectng hierarchical divisions
of the courtroom, the Courts of Women
adopt a radical democracy model which
lends it popular legitmacy. Importantly, such
democratc tendencies have been further
realised through the Courts demonstraton
of a conscious efort to recognise the diverse
forms of violence that women experience in
their everyday life; empowering partcipants
through acknowledgment of their status as
victms and survivors. It can thus be seen
that the World Courts of Women provide
a platorm for women whose voices are
unheard to condemn the perpetrators of the
violence commited against them, and in so
bringing its partcipants one step closer to a
holistc realisaton of gender justce.
REFERENCES
1. Peoples Movement Assembly Resoluton of Acton, Introducton on the World Court of Women
(20072008) Womens Economic Agenda Project, <htp://weap.org/WCW/WCWAbout.htm>.
2. Lucis Trust, Interviews ( Lucis Trust World Goodwill Organisaton,
<htp://www.lucistrust.org/en/service_actvites/world_goodwill/interviews>.
3. Corinne Kumar, The Vision, Asian Womens Human Rights Council and EI Internatonal,
<htp://www.rutapacifca.org.co/descargas/mdn/pon_CorinneKumar.pdf>.
4. Marguerite Waller, News: The Courts of Women (17 April 2011) The Womens Economic Agenda
Project <htp://weap.org/news/386/17/The-Courts-of-Women.htm>.
5. Kumar, above n 3, 1.
10 9
6. Waller, above n 4.
7. Corinne Kumar, The World Court of Women for Peace, Against War : A Brief Overview (25 March
2001) Women in Black Leuven <htp://snellings.telenet.be/womeninblackleuven/world_court_
women.htm>.
8. Waller, above n 4.
9. Dianne Oto, Power and Danger: Feminist Engagement with Internatonal Law through the UN
Security Council (2010) 32 Australian Feminist Law Journal 97, 102.
10. Paula Ruth Gilbert, Discourses of Female Violence and Societal Gender Stereotypes (2002) 8
Violence Against Women 1271, 1271.
11. United Natons Peacekeeping, Women, Peace and Security (2000) United Natons,
<htp://www.un.org/en/peacekeeping/issues/women/wps.shtml>.
12. Kumar, above n 7.
13. The Gender and Development for Cambodia, Report on World Court of Women Against War, for
Peace (29 March 2009) Gender and Development for Cambodia <htp://www.bigpond.com.kh/
users/gad/gadnet/repSA01.htm>.
14. Rosalind Dixon, Rape as a Crime in Internatonal Humanitarian Law: Where to from Here? (2002)
13 European Journal of Internatonal Law 697, 699.
15. Kunarac et al. (IT-96-23 & 23/1) Foa.
16. Dixon, above n 15, 701.
17. Dixon, above n 15, 705.
18. Dixon, above n 15, 709.
19. Geneva Conventon (IV) Relatve to the Protecton of Civilian Person in Times of War, adopted 12
August 1949, 75 UNTS 287 (entered into force 21 October 1950) art 27.
20. Customary Internatonal Humanitarian Law, Practce Relatng to Rule 93: Rape and Other Forms of
Sexual Violence (2013) Internatonal Commitee of the Red Cross
<htp://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule93>.
21. Oto, above n 9, 116.
22. Fionnuala N Aolin, Women, Security and the Patriarchy of Internatonalised Transitonal Justce
(2009) 31 Human Rights Quarterly 1055, 1059.
23. Ibid 1061.
11
Both the Universal Doctrine of Human Rights
and the Internatonal Covenant on Civil and
Politcal Rights address the importance of a
fair and open trial
1
, and the need for justce
to be dispensed by an independent and
impartal judiciary, not arbitrarily. The notons
of natural justce and procedural fairness are
commonly accepted in Australia and other
Westminster systems, and domestcally, this
is applied to alleged rapists, murderers and
paedophiles, with human rights given to
those that have commited even the most
repugnant acts. Nevertheless, internatonally,
this right is rarely given to the dictators
and tyrants post-regime, with transparency
and due process not seen as a priority in
the transiton of power. The examples of
former dictators Muammar Gaddaf of
Libya and Saddam Hussein of Iraq exemplify
the challenges to reconciling the crimes
of the past with future stability. Saddam
Hussein was tried summarily, his gruesome
executon captured on flm and broadcast to
an internatonal audience, whilst Muammar
al-Gaddaf was killed before facing trial, his
body displayed as a symbol of the displaced
regime. In both cases, the absence of a fair
trial has prevented the implementaton of the
rule of law and exacerbated regional conficts.
This artcle seeks to promote the rights of
tyrants, the perpetrators of horrifc crimes,
individuals that are admitedly not usually
worthy of the sympathy of the internatonal
community. However, it is not simply for their
beneft that transparent justce is the most
desirable outcome. A fair trial, followed by
incarceraton if found guilty, deprives them of
martyrdom, and sets the tone for a peaceful
transiton of power.
I. THE DISADVANTAGES OF DEATH
WITHOUT TRIAL
In June 2011, the Internatonal Criminal
Court issued a warrant for the arrest of
Gaddaf, statng that under artcle 58(1) of
the Rome Statute,
2
the arrest of Muammar
Gaddaf appears necessary at this stage to
ensure his appearance before the Court,
3

although this never eventuated. Instead, on
the 20 October 2011, a targeted NATO drone
strike hit a convoy of vehicles atemptng
to fee westward from the coastal town of
Sirteiv. This was followed by a skirmish with
Misrata militamen, whilst at the same tme
Gaddaf atempted to hide in two drainage
pipes underneath a major road.
5
From
here, the truth is difcult to determine, as
accounts difer on the precise details of
how Muammar Gaddaf was killed. A United
Natons report states that Muammar Gaddaf
was alive on capture, subsequently dying in
custody,
6
although it draws no inferences
as to whether this was an unlawful killing.
Contrastngly, Human Rights Watch asserts
that the milita abused Gaddaf upon capture,
with one soldier stabbing him with their
bayonet, Gaddaf consequently dying within
two hours of capture.
7
Furthermore, the
Human Rights Council was not provided
with autopsy reports by the authorites,
preventng a conclusive determinaton.
8

The gruesome images of a mangled but
recognisable Gaddaf fooded the internet
and news media upon his death, a cause
for celebraton for many of the people that
sufered under his regime,
9
although the
violence of his death served as an ominous
circumstances surrounding Gaddafs death
drew atenton away from his crimes, and
without a trial, Gaddafs victms have lost the
opportunity for his actons to be denounced.
Furthermore, the deaths of Gaddaf and
bin Laden without trials allows a tyrant
and a terrorist to be spared the deserved
shame and stgma of imprisonment, instead
enjoying the luxury of death and the post-
mortem glory of martyrdom.
II. THE INTERNATIONAL CRIMINAL
COURT - A MODEL FOR JUSTICE?
Ideally, tyrants such as Gaddaf would be
brought to justce through the Internatonal
Criminal Court, which provides the most
impartal and authoritatve body for the
trial of war criminals. The internatonal legal
environment has developed signifcantly since
the creaton of the Internatonal Military
Tribunal at Nuremberg, which introduced
the noton of individual responsibility for
crimes of the state. The ad hoc tribunals
created in response to regional crises, the
Internatonal Criminal Tribunal for Rwanda
(ICTR) and the Internatonal Criminal Tribunal
for the former Yugoslavia (ICTY) have been
critcal to reforming the culture of impunity,
by taking efectve measures to enforce
individual criminal responsibility.
11
The most
important development in recent years has
been the increasingly accepted place of
the ICC in the internatonal judicial regime.
The ICC has the broad consent of the states
behind its establishment, and even those that
have opted not to consent to ICC jurisdicton
support mechanisms of internatonal
accountability. Although the ICC has faced
critcism on the basis of procedural fairness,
and atacks on its legitmacy,
12
it provides the
best hope for holding leaders accountable
and enforcing the standards of the wider
internatonal community. Furthermore, the
creaton of a permanent, independent judicial
body has led to not only a punitve but also a
restoratve functon through the partcipaton
sign of the transiton process to come. The
legal response to the indeterminate cause of
death has been insufcient, with the chaotc
lack of proper legal inquiry demonstratng
the obstacles faced by the new Libyan
government in the enforcement of the rule
of law, leading the Human Rights Council to
call for further enquiry into the mater.
10
Like
the death of Osama bin Laden, the disputed
...without a trial,
Gaddafis victims have
lost the opportunity
for his actions to be
denounced.
14 13
REFERENCES
1. Internatonal Covenant on Civil and Politcal Rights, opened for signature 16 December 1966, 999 UNTS
171 (entered into force 23 March 1976), art 14; Universal Declaraton of Human Rights, GA Res 217A (III),
UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art. 10.
2. Rome Statute of the Internatonal Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90
(entered into force 1 July 2002), art. 58(1).
3. Situaton in the Libyan Arab Jamahiriya (Warrant of Arrest for Muammar Mohammed Abu Minyar
Gaddaf) (Internatonal Criminal Court, Pre-Trial Chamber I, Case No ICC-01/11, 27 June 2011 [19])
4. Human Rights Watch, Death of a Dictator (2012) 1.
5. Ibid.
6. Human Rights Council, Report of the Internatonal Commission of Inquiry on Libya, 19th sess, Agenda
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, Gaddaf's death prompts wild celebratons in Tripoli, BBC News (London) 20 October 2011.
10. Human Rights Council, ibid. 9[33].
11. Popolevski, V 2012, Legality and Legitmacy of Internatonal Criminal Tribunals 12, chapter in Falk, R et
al 2012, Legality and Legitmacy in Global Afairs, Oxford Univerity Press, Oxford.
12. Ibid 20.
13. Prosecutor v Tadic (Judgement) (Internatonal Criminal Tribunal for the Former Yugoslavia, Appeals
Chamber, Case No IT-94-1-A, 15 July 1999).
14. Prosecutor v Kanyabashi (Judgement) (Internatonal Criminal Tribunal for Rwanda, Trial Chamber II, Case
No ICTR-97-29-T, 8 March 2002).
15. Cassese, A 2012, The Legitmacy of Internatonal Criminal Tribunals and the Current Prospects of
Internatonal Criminal Justce, Leiden Journal of Internatonal Law, vol. 25, no. 2, 492.
16. Ibid 492.
17. Ibid 494.
18. Peterson, J 2007, Unpacking Show Trials: Situatng the Trial of Saddam Hussein, Harvard Internatonal
Law Journal, vol. 48, no. 1, 282.
19. Ibid 286.
20. BBC World News, Hanging makes martyr of Saddam, BBC News (London) 5 January 2007.
21. Scharf, M 2002, The Legacy of the Milosevic Trial, New England Law Review, vol.37, 915.
and reparaton of victms and afected
communites. The legal force of the ICC is
enhanced by the legitmacy it has earned
through the consent of over 120 natons to its
jurisdictons, processes generally seen as fair
and impartal, and the universally desirable
goal of achieving peace and stability.
III. THE QUEST FOR LEGITIMACY
From the trial of Charles I in 1649 to the trial
of Saddam Hussein, trials of former heads
of state have been frequently challenged on
the basis of illegitmacy, with the defendants
contending the court does not have
jurisdicton over their actons. In the ICTY and
ICTR, the cases of The Prosecutor v Tadic
13

and The Prosecutor v Kanyabashi
14
challenged
the legality and legitmacy of the tribunals. In
additon, Antonio Cassese, Former President
of the Special Tribunal for Lebanon has
outlined a test of legitmacy to be applied to
internatonal tribunals. As Cassese states, an
insttuton is considered legitmate when the
majority of the populaton, or the majority
of the insttutons consttuency, expresses
a high degree of consent and approval for
it.
15
The values, principles and goals are the
insttutons legitmatng grounds
16
and a
legitmate tribunal must have the consent of
the wider populaton, a legitmate purpose
based on universal values of truth and justce,
and must achieve performatve legitmacy
through due process.
17
The ICC strives to meet
these goals, as have the ICTY and ICTR before
it, although trials of former leaders ofen fail
to meet these basic standards.
IV. THE TRIAL OF
SADDAM HUSSEIN
A prime example of this is the farcical trial
of Saddam Hussein initated in 2004, with
the lack of due process creatng a crisis of
legitmacy for the court. Furthermore, the
court lacked procedures to safeguard it
against accusatons of being a show trial, as
the US and Britain exercised a high degree
of planning and control of the trial.
18
Salem
Chalabi, a member of a powerful Iraqi family
allied with the US, was appointed to head
the trial despite being a trial lawyer with no
judicial experience. Additonally, public access
to the trial was denied, and proceedings
were subjected to heavy censorship.
19

Consequently, the trial and executon of
Hussein had a detrimental impact on the
transiton of power, as many of his crimes
were lef unaddressed and large sectons
of the Iraqi people refused to accept the
legitmacy of the decision. As former Egyptan
President Hosni Mubarak stated at the
tme, No-one will ever forget the way in
which Saddam was executed - they turned
him into a martyr, and the problems in Iraq
remained.
20
In contrast, the trial of former
Serbian leader Slobodan Milosevic was given
sufcient resources to defend himself, and
was also allowed to publicly challenge the
legitmacy of the ICTY.
21
This sometmes led to
Milosevic frustratng the trial proceedings, but
it ultmately assisted the court gain legitmacy,
as justce was done publicly and the facts of
the case unfolded in a manner unbiased by
legal processes.
V. CONCLUSION
Satsfying the rights of victms, defendants
and the wider populaton has proved to be
a difcult balancing act in the pursuit of
internatonal justce. The ICTY has recently
come under critcism for its failure to convict
Croatan generals in the Balkan confict and
not doing enough for the victms of the war
crimes. However, those indicted by the ICTY
include heads of state, prime ministers and
army chiefs-of-staf and this has assisted the
reformaton of a culture of impunity and
facilitated a healing process. Contrastngly,
show trials and executons only serve to
exacerbate conficts, exemplifed by the
consequences of the premature deaths of
Gaddaf and Hussein. If heads of state are to
be held accountable in the future, then the
rights of tyrants and the most abhorrent war
criminals must be upheld as due process is a
necessary precursor to the achievement of
peace, stability and reconciliaton.
No-one will ever forget the way in which
Saddam was executed - they turned him into a
martyr, and the problems in Iraq remained.
16 15
Most Australians assume that if they run out
of money they can turn to social security.
However, when a person runs out of
compensaton that safety blanket may
not be as available as expected.
This discussion focuses on NSW but applies
in similar terms to other parts of Australia.
The common law principles for the award
of damages contnue to apply, subject to
the caps and limits put in place by the Civil
Liability Act 2002 (NSW). The general rule
is that the injured person is to be placed
back in the positon they would have been
in had the accident not happened, so far as
money will allow: Todorovic v Waller (1981)
150 CLR 402. This is the reason it has always
been beter to injure a poor person than a
rich person. In order to put the person back
into that positon various heads of damages
are considered, including lost earnings and
lost earning capacity, expenses incurred,
future expenses, and general damages (pain
and sufering, lost life-tme etc). Because
compensaton is not intended to punish
the defendant (who, afer all, may not have
done anything very wrong for example,
look sideways while driving) the courts
try to ensure there is no element of extra
compensaton by deciding on the low side
in many of the heads of damages. Overall,
compensaton is worked out on the basis
that the person should be able to contnue
to live, more or less, as they did before, and
it is calculated to last according to the life
expectancy of the victm.
This seems fair enough. But many people run
out of money before that life expectancy is
over. Sometmes this is because the person
did not use the money wisely, but there are
other reasons. One is the discounts applied.
The earnings component will be discounted
15-30% for the vicissitudes of life; and the
whole lump sum will be discounted 5% for the
fact that the money is being received earlier
than it would had the accident not happened.
So, if your lump sum runs out you can apply
for social security, right? Wrong. Or probably
wrong. There are many examples of people
who have run out of compensaton, not
necessarily because they wasted the money,
but who, on applicaton to social security
found they were precluded.
If this happens to you it is a nasty shock if your
solicitor didnt warn you that it might happen.
The Social Security Act 1991 (Cth) provides
that where compensaton has been awarded
for lost earnings the person compensated will
not be eligible for social security for a Lump
Sum Preclusion Period (LSPP).
This may not be not as fair as it frst seems.
There are two big issues: how the LSPP
is calculated, and the fact that it ignores
lawyers fees.
CALCULATION
OF THE LUMP SUM
PRECLUSION PERIOD
The LSPP is calculated by dividing
the compensaton part (that is
the earnings part) of the compensaton by
the divisor, as defned in the Social Security
Act 1991 (Cth).
Where compensaton is received by
setlement, the compensaton part is
50% of the lump sum, regardless of the
actual amount claimed for lost earnings.
If the mater is decided by a court the
compensaton part is whatever the court
specifes. The divisor is set at the amount of
income a single pensioner can earn in a week
before the pension is lost. At present that is
about $880.
Consider Joe. He was injured at work,
lost a leg and the use of his right hand. In
constant pain he can no longer work as an
electrician or any kind of tradesman and has
no other work skills. Because he is 48 it is
unlikely that he will be able to work again.
He can no longer play the tuba in the band
he belonged to. He had
been paid about $3000 per
fortnight (net). His case was
setled and he received a lump
sum of $530,000 on the basis that
he was unlikely to be able to work
again and that his life expectancy would be
about 65, or another 16 years. He thought of
investng the remaining money but couldnt
think what to do so put most of it in a term
deposit. He tried to spend a bit less than he
used to but with rent, food, a holiday costng
about $3000, the lawyers fees and signifcant
medical expenses including on pain medicaton
all the money had gone afer 5 years.
Joe had confdently expected social security
to look afer him. But they calculated his LSPP
on the usual basis that the compensaton
amount was half of $530,000 = 265,000.
Divided by the divisor of 880 =301 weeks that
gave 6 years. He would not be enttled for
at least another year. Joe was desttute and
soon afer he was homeless.
Notce the diference between the courts
original calculaton of how long the money
would last and the social security calculaton.
Is it reasonable for the social security preclusion
period to be calculated quite differently from the
way the compensation was calculated?
RUNNING OUT OF
COMPENSATION MONEY:
WHIPPING AWAY THE SOCIAL SECURITY BLANKET?
1
BY PRUE VINES & MATTHEW BUTT
18 17
LAWYERS FEES
The second issue for the person who has run
out of compensaton is that the calculaton
of the LSPP ignores the cost of getng the
compensaton that is, the lawyers fees.
This is a very big issue, partcularly 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 compensaton
if there is a win. It turns out that Joes no-
win-no-fee agreement provided that he
would pay 20% of his award to the lawyers
who litgated his compensaton 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 questons about this. Is it
reasonable for the social security preclusion
period to be calculated quite diferently from
the way the compensaton was calculated?
Taxpayers should not be overburdened; but
this contradicts the compensaton principle,
which is to put the person back in the positon
they would have been in if the accident
hadnt happened.
Damages are not awarded on the basis that
the plaintf 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 lawyers fees
exacerbates the problem. This leaves people
like Joe with no optons. The inadequacy of
compensaton, by this process is converted
into an accelerator of peoples fall through
the social security safety net into desttuton.
It could happen to anyone, even you.
1 Prue Vines, Professor, Law School, UNSW and
Mathew But, Litgaton Solicitor, Welfare Rights
Centre. We are currently carrying out a research
project on the impact of compensaton on social
security rights.
SEX WORK, AUTONOMY
AND THE INJUSTICES OF
CRIMINALISATION
*
BY AMBER KARANIKOLAS I
M
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20
* Due to the disproportional amount
of women involved in the sex industry,
this article will be concerned with
what may appear to be a particularly
heteronormative view of the industry.
Although I acknowledge the heterogeneous
and diverse identities of those involved in
sex work, (especially the fact that men are
sex workers as well), this is, unfortunately,
outside the scope of this research, as I will
be focusing on those who identify as
women who are involved in sex work.
I. INTRODUCTION - A WAR
BETWEEN DEFINITIONS
Understandings of the defniton of autonomy
have been central to the way we view human
rights in relaton to sex work. The confictng
views on whether sex work is real work seem
to crux on how we defne sexual autonomy
itself. Stephen Schulhofer defnes sexual
autonomy as the freedom of every person to
decide whether and when to engage in sexual
actvity.
1
In specifc relaton to sex work there
ought to be a right to safeguard and exclude,
the freedom to refuse to have sex with any
person at any tme, for any reason or for no
reason at all.
2
Questons of autonomy will
always involve problems of degree, and social
conditons habitually prevent individuals from
making truly autonomous choices.
3
Physical
coercion interferes with autonomy but is not
the only factor impeding the autonomous
right of persons.
4
The respectve literatures
of St James Richards and Schulhofer assume
a broad defniton, whilst Elizabeth and Scot
Anderson have favoured a narrow approach.
5

For the purposes of this essay I will adopt
Schulhofers wide delineaton to consider
how internatonal societes have developed
customs which impinge on the choice and
consent of its democrats.
II. SEX WORK VERSUS NORMAL
WORK: IS THERE A DIFFERENCE?
It prima facie appears impossible to reach
a single conclusion about the role of
autonomy in the choices of sex workers,
or lack thereof, partcularly in light of the
protracted history of feminist literature
around the issue. Sex workers themselves
hold a multtude of confictng views
about their own autonomy, and scholars,
academics and advocacy groups are all
opinionated on the dynamics of consent and
autonomy in the realm of sex work.
When considering a womans choice to
enter sexual relations in return for money,
it becomes necessary to evaluate whether
sex work can be discussed in the same
light as other professions. If the answer
is in the negative, what then makes sex
work different?
Many sex workers defend their right to be
paid for sexual acts and value the dignity
and liberty of the profession.
6
It is also ofen
argued that sex work does not fundamentally
difer from other kinds of professions through
arguments that whatever exploitaton or
degradaton accompanies sex work originates
from its morally and legally stgmatsed
practce.
7
Jody Freeman eruditely summarised
the inescapable dilemma of the prejudiced
practce, signpostng two overarching issues:
[R]esist[ing] the commodifcaton of
womens sexuality requires [either]
circumscribing choices that some women
themselves insist are voluntary, or to support
the right of women to do the work they say
they want to do, at the cost of reinforcing
male dominance.
8

This dichotomy in opinion afects our
interpretaton of sex work. Are sex workers
exercising sexual freedom and pleasure as
free agents, or conversely, are sex workers
exclusive victms of their customers?
9
Gayle Rubin rightly believes that democratc
morality should judge sexual acts by the
way partners treat one another, the level
of mutual consideraton, the presence or
absence of coercion, and the quantty and
quality of the pleasures they provide.
10
This
ethical view ought to be accepted as the
proper lens through which we evaluate the
role of autonomy in sex work. This is because
there is general acknowledgement, not only
that women partcipate in sex work ultmately
for economic gain, but also because receiving
an income should not trump the safety of
the individual. Many (but defnitely not all)
workers of the sex industry are unfairly, yet
likely, to be exposed to danger, disease,
mistreatment, [violence], insecurity,
psychological abuse, and emotonal pain.
11

Ample research provides that socio-
economic and politcal factors such as
gender parity, loss of job security and the
feminisaton of poverty are the major causes
for female involvement in the sex industry.
12

For some women it is an actve choice but
for many it is a last resort where women are
required to consent.
13
It is this permeatng
noton of socio-economic and politcal
coercion which is the point of disagreement
and a major reason why sex work has
historically proved so perplexing. In any case,
the conditons sex workers have worked
and contnue to work under has been
overshadowed by notons of voluntariness
and the sex professions patriarchy.
14
Interestngly Kathleen Barry rightly
champions the idea of the existng
uselessness of choice rhetorics by
highlightng that sex work is not concerned
with female autonomy, but rather the
autonomy of customers.
15
An increasing
number of writers are understandably
requestng greater focus on those
who purchase sex work, rather than
concentratng on the female workers
themselves.
16
This is in an atempt to
atack the root of the problem.
17
This dichotomy in opinion
affects our interpretation
of sex work. Are sex
workers exercising sexual
freedom and pleasure as
free agents, or conversely,
are sex workers exclusive
victims of their customers?
22 21
III. TO REFORM, OR NOT TO REFORM?
THAT IS THE QUESTION
Crafing policy and reform proposals that
protect the autonomy of the individual
without legitmising sexist elements of the
practce has proved overwhelming for moral
and legal theorists.
18
State regulaton or
criminalisaton is ofen a further impositon
on the autonomy of sex workers.
Advocacy groups, such as the Canadian
Organisaton for the Rights of Prosttutes
(CORP), lobbies for reform of criminal
laws in relaton to sex work. CORP strives
not only for decriminalisaton of the so-
called ofensive and amoral sex worker
profession but also justfably believes that
sex workers be allowed to organise, pay
taxes and receive unemployment insurance.
In short, CORPs ideal situaton is to set
their own standards.
19
Decriminalising sex work is especially
important from a moral standpoint. This
is because it is increasingly difcult for sex
workers to report violence and other crimes
commited against their person for fear of
themselves being prosecuted. Combined with
the lack of protecton and support available
for sex workers in such circumstances, the
criminalisaton of sex work has ironically yet
unjustfably only achieved the opposite of its
legislated purpose; it has propelled the sex
industry further underground.
20
Decriminalisation, the granting of (some)
autonomy back onto sex workers, thus
seems a viable solution to the conundrum.
If sex workers can organise, form support
groups and run self-help networks, they
will be enabled to exert some control over
the coercive elements of the practice.
21

By listening to sex workers themselves,
it is clear that many are weary of being
subjected to other peoples views of
appropriate sexuality.
22
However, decriminalisaton and reform
are only the startng points for the
professionalisaton of the practce which
could lead to improved working conditons
for many women. Although lobby groups
for sex worker rights and many feminists
unwaveringly express diferent long-term
goals, they ought to agree on short-
term reform proposals to create some
prospect for any long-term aspiratons.
23

Decriminalisaton, albeit not a conclusive
end to sex worker discriminaton, would
allow for unionisaton, harm-minimisaton
policies, the extension of worker benefts,
and health and safety regulatons. All of
which could signifcantly improve the life of,
and provide some empowerment to, those
working in the sex industry.
24

IV. THE SWEDISH MODEL:
AN AVENUE FOR JUSTICE?
There has been recent debate in Europe
about legal changes introduced in several
countries. In Sweden, sex work is considered a
social problem, and uniquely laws criminalise
the purchasers of sexual services in an
atempt to reduce demand. The legislaton
hopes to achieve equality between males
and females at a natonal level in Sweden
by defning sex work as a form of violence
against women.
25
Since January 1, 1999,
purchasing or atemptng to purchase sexual
services has consttuted a criminal ofence
punishable by fnes and up to six months
imprisonment.
26
It is in this way that Swedish
laws, despite being highly regulatory, can be
considered abolitonist.
27
The Swedish Model has recently been
adopted by other countries such as France.
28

Yet, it is important to note that the Swedish
Model is an alternatve to sex work distnct
from decriminalisaton, because under the
Swedish Model sex work remains illegal.
A support system was introduced that
included permanent government funding of
municipal sex worker projects, counselling
and retraining possibilites.
29
Yet, their success
has been hampered by the way statutory
regulatons afect the women involved.
An increasing number of writers are
understandably requesting greater focus
on those who purchase sex work, rather
than concentrating on the female workers
themselves. This is an attempt to attack
the root of the problem.
If sex workers can organise, form support
groups and run self-help networks, they will
be enabled to exert some control over the
coercive elements of the practice. By listening
to sex workers themselves, it is clear that
many are weary of being subjected to other
peoples views of appropriate sexuality.
The frst efect afer enactment was an
immediate drop in the numbers of women
visibly working. A problem here arises,
because these fndings unlikely refected a
departure from sex work, but rather only
likely emphasised how sex workers and
their clients have chosen less visible ways
of proceeding with their business. Also, the
number of convictons is startlingly low. In
the frst nine months of 1999 only three sex
clients were found guilty and charged. While
project workers have emphasised that they
are available to sex workers for support, sex
workers seem to fnd it increasingly difcult
to contact project workers. Subsequently,
project workers have had litle success.
30
Moreover, not only should the efect of
the legislaton be considered at the local
level, but ought to be discussed on an
internatonal, scale, because immigrant
sex workers in Sweden are also likely to be
driven underground in fear of deportaton.
31

The consequences of sex work being driven
underground means that sex workers and
their clients increasingly evade visibility and
thus criminal sancton.
Although the Swedish Model is a practcal
and virtuous legal policy soluton to the sex
worker dilemma by aiming to criminalise
the agents and managers of brothels who
24
REFERENCES
1. Stephen J Schulhofer, Unwanted Sex: The Culture of Intmidaton and the Failure of Law (Harvard
University Press, 1998) 99.
2. Ibid.
3. Ibid 107.
4. Ibid 100.
fnancially proft from the sex work, it is ofen
the working women in partcular who sufer.
32

The Swedish Model therefore ultimately
fails to protect the autonomy of sex workers.
Is then decriminalisation the only
justiciable answer?
Governments therefore ought to opt for
decriminalisaton, the establishment and
permanent funding of health and support
programs, and to follow the United Natons
recommendatons on sex work policy
which would establish sex work as real
work.
33
Decriminalisation of sex work
should include the abolition of criminal
laws and penalties for the purchase of sex
(as Sweden does) the management of sex
workers and brothels, and other actvites in
connexion with sex work.
34
V. CONCLUSION
DECRIMINALISATION: THE ONLY
REASONABLE ALTERNATIVE?
Sex work is largely a response to a lack
of economic alternatves which not only
results in constraints on womens optons
and freedom, but also contemporaneously
forces them into a positon of limited choice
in what should be a right to choose or refuse
sexual partners.
35
Although some undertake
sex work voluntarily, we must remain
cognisant of the relatvity of choice; where
there exists an ability of social consttuents
to infuence decision making which could
impede an individuals capacity to give
consent. We ought to remain aware that
legislaton aimed at eliminatng poverty and
increasing employment optons for women
is equally as necessary as state acton
regulatng or the practce itself.
36
As seen
with the failures of the Swedish Model,
without formal and pragmatc state eforts
to achieve gender equality, legal regulaton
and criminalisaton of sex work, there will
remain inefectve strategies to deter those
involved in the sex industry. Subsequently,
without decriminalising sex work, legal
systems ubiquitously will contnue to, and
further, deprive sex workers of their human
right to autonomy.
5. Jefery, Gauthier, Prosttuton, Sexual Autonomy, and Sex Discriminaton (2011) 26(1) Hypata 166, 176.
6. Christne Overall, Whats Wrong with Prosttuton? Evaluatng Sex Work (1992) 17(4) Signs 705, 705.
7. Gauthier, above n 5, 167.
8. Jody Freeman, The Feminist Debate Over Prosttuton Reform: Prosttutes Rights Groups, Radical
Feminists, and the (Im)possibility of Consent (1990) 5 Berkeley Womens Law Journal 75, 76.
9. [The citaton given was incorrect and no part of the artcle cited refected the ideas expressed by this
sentence] In the event that you do fnd the ideas refected, the correct citaton is Ibid 77.
10. Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politcs of Sexuality in Carole Vance (ed),
Pleasure and Danger (Routledge and K. Paul, 1984) 143, 153.
11. Overall, above n 6, 710.
12. Monica OConnor and Grainne Healy, Coaliton Against Trafcking in Women and the European Women
Lobby, The Links between Prosttuton and Sex Trafcking: A Brief Handbook (2006) 6.
13. Overall, above n 6, 711.
14. Freeman, above n 8, 86.
15. O Connor and Healy, above n 12, 12.
16. Jan Macleod et al, Challenging Mens Demand for Prosttuton in Scotland: A Research Report Based
on Interviews with 110 Men Who Bought Women in Prosttuton (Report, United Kingdom: Womens
Support Project), 5.
17. Ibid.
18. Gauthier, above n 5, 166.
19. Ibid 83.
20. Freeman, above n 8, 81.
21. Ibid 92.
22. Ibid 104.
23. Ibid 72. Freemans essay goes deeper into what most feminist think on the topic and the divergence
between liberal feminists (proponents of liberal individualism) and radical feminists, and how they too
have difering aspiratons for the future or the sex industry.
24. Gauthier, above n 5, 182.
25. Ministry of Industry, Employment and Communicatons, Government of Sweden, Prosttuton and
trafcking in human beings (April 2005) Government Ofces of Sweden,
<htp://www.regeringen.se/sb/d/2664>.
26. Ibid.
27. Judith Kilvington, Sophie Day, and Helen Ward, Prosttuton Policy in Europe: A Time of Change? (2001)
67 Feminist Review 78, 78.
28. Emily Denny, Frances newest import? Parliamentary Commission calls for Swedish model client
criminalizaton (9 September 2011) Nordic Prosttuton Policy Reform <htp://nppr.se/2011/09/09/
france-newest-import-parliamentary-commission-calls-for-swedish-model-client-criminalisaton>.
29. Kilvington, Day and Ward, above n 27, 83.
30. Ibid 85.
31. Ibid 89.
32. UNAIDS, Guidance Note on HIV and Sex Work (2012) 6.
33. Ibid.
34. Ibid.
35. Schulhofer, above n 1, 111.
36. Gauthier, above n 5, 168.
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BY FARAH ABDEL The impending death of Nelson Mandela has undoubtedly
prompted the world to reminisce on his inspiratonal life
achievements and I too have been infuenced to do the
same. I was reminded of Mandelas role as an ant-apartheid
revolutonary. It reminds me of my journey with family to
Palestne as a 12 year old girl in 2007.
Despite being a violaton of internatonal law, apartheid
regulated South Africa from 1948 untl 1994. The South
African Natonal Party led a system of racial segregaton
where the rights of the black inhabitants of South Africa
were removed in order to preserve white supremacy. In his
eforts to destroy this apartheid regime, Mandela announced
that there is no such thing as part freedom for freedom
would be meaningless without security in the home and in
the streets. Mandelas spoken truth resulted in his 27 years
of imprisonment.
The South African apartheid seems analogous to the modern
Arab-Israeli confict. Following the series of Arab-Israeli wars
from 1947-1949, approximately 700,000 Palestnians fed the
country or were expelled from their homes. This resulted in
the formaton of the Israeli state, who then
took control of the area recommended by
the UN General Assembly Resoluton 181 as
well as control of 60% of Arab land allocated
by the United Natons. Since then, Israel has
forced a daily struggle and oppression onto
the Palestnian people. It is difcult not to
notce the likeness between the South African
Apartheid regime and that of Israeli-occupied
territories and I witnessed it.
In the summer of 2007, I embarked on a
routne visit to the Middle East with my
family, frst to Syria to visit my mothers family
and then to Jordan, to visit my fathers. For
the frst tme, since migratng from the Middle
East in 1999, my family and I visited Palestne.
I knew the history, I heard the stories and
watched the news, but nothing prepared
me for events that I would experience, the
things that I would witness and the emotons
I would soon feel. What should have been
a peaceful and secure journey (due to the
Australian passport) was made tense and
difcult due to our obvious Arabic heritage.
I witnessed the Israelis control each place we
visited. I saw the Jewish-only setlements,
the separate states, towns and roads for the
dispersed Israeli and Palestnian citzens. I
waited at several military checkpoints for hours
at a tme to reach our destnaton, where I
stood among the many Palestnian Arabic men
and women who made their four hour journey
to work, only to be used as cheap labour. Some
people would fght their way to the front of the
gate in frustraton. Others waited in silence,
indicatng how this routne has sadly become
conventon for some.
I witnessed a woman being refused entry
into a town at a checkpoint because she was
clearly of an Arabic heritage. I watched her
sufer through emotons of despair, sadness
and anger as she missed her sisters funeral,
for which she travelled from Jordan, whilst
the Israeli soldiers who refused her entry
laughed and socialised among one another.
I saw dozens of army tanks and thousands
of armed soldiers patrolling towns, scaring
children and monitoring set curfew tmes.
I drove along the notorious Wall; a 700
kilometre Israeli West Bank barrier which
separates the State of Israel from the
Palestnian West Bank; a wall which separates
and exacerbates diferent cultures and
cultural tensions. On either side of the wall
there is a stark contrast in infrastructure and
living conditons. Thousands of armed Israeli
soldiers patrol the walls border and create
further apprehension among the Palestnian
people. Yet, the world does not appear to care.
P
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A NATION SHOULD NOT BE
JUDGED BY HOW IT TREATS
ITS HIGHEST CITIZENS, BUT
ITS LOWEST ONES - NELSON MANDELA

28 27
30 29
In hindsight, and from a contemporary Western
perspectve, 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 Palestnians sufered and contnue to
sufer in silence. Apartheid no longer exists for the South
Africans. Apartheid however is stll law for the Palestnians:
65 years and running.
In 1973, the UN made Apartheid an internatonal crime
under the Internatonal Conventon on the Suppression and
Punishment of the Crime of Apartheid. Internatonal critcs
of the Israeli natonal and internatonal policy make an
analogy between Israel and South Africa and accuse Israel
of commitng the crime of apartheid. Opponents to this
analogy claim that it is intended to deligitmise Israel and
say their policy is enacted for security concerns in order to
protect them from Palestnian terrorist organisatons.
I wonder how much longer Israel and the USA will be able
to use security concerns as a means of justfying their own
terrorism, not just on Palestne, but on natons 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 natons
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
OUR FREEDOM IS INCOMPLETE
WITHOUT THE FREEDOM OF
THE PALESTINIANS.
NELSON MANDELA
BY WILLIAM SHRUBB
TRANSSEXUALS
AND THE LAW
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30 29
I. A COMPARISON BETWEEN
ENGLAND AND AUSTRALIA
Male and female he created them,
1
wrote
the author of the Book of Genesis. It is such
an easy sexual dualism that touches so many
aspects of our lives. When you walk into the
UNSW Law building, seeking a bathroom,
and are confronted with a choice male or
female the same dualism is lurking. It is
not a problem for most people. Sometmes,
however, a person may have the physical
characteristcs of one sex, yet feel deeply that
they are in fact a member of the other sex.
This is known as transsexualism, or gender
dysphoria. It is diferent from homosexuality.
Women who have sex with women are stll
women; they have the physical characteristcs
of women, and identfy as women. It is
diferent from transvestsm, or cross-dressing:
men who dress as women stll have the
physical characteristcs of men, and stll
identfy as men. It is also diferent from being
an intersex person, or a hermaphrodite.
Transsexual people only have the physical
characteristcs of one sex.
However, over twenty thousand Australians
who experience transsexualism, feel like
they are stuck with the wrong physical
characteristcs.
2
Over the last four decades, the
law has had to grapple with questons where
this previously simple sexual dualism has broken
down. Courts have had to answer questons like:
What criteria should be used to
determine a persons sex?
When should transsexual people
be recognised as a member of a
particular sex?
Under what circumstances should
new birth certificates and identity
documents be issued to
transsexual people?
And crucially, who is a transsexual
person allowed to marry?
Answering these questons has been difcult,
and the results have ofen been tragic, but
the general trend has been towards a greater
understanding and tolerance of those people
who do not ft so easily into our constructed
sexual dualism.
II. THE LAW IN ENGLAND: THE
RESTRICTIVE BIOLOGICAL TEST
The frst major case to deal with this issue
was Corbet v Corbet (orse. Ashley).
3
The
applicant was Arthur Corbet, later Baron
Rowallan, the cross-dressing son of Thomas
Corbet, an English aristocrat who was
Governor of Tasmania from 1959 to 1963.
The respondent was April Ashley, a former
model. Their marriage had broken up, and
Ashley was seeking some share of Corbets
property. Ormrod LJ was asked to determine
if the marriage between the two partes
was valid. It was, all in all, the standard
kind of fodder for the society pages of the
Britsh tabloids. Except for one thing: April
Ashley had been outed as a male-to-female
transsexual ten years earlier.
Born in Liverpool in 1935 as George
Jamieson, April was raised as a boy, and
joined the Merchant Navy at the age of
fourteen. But despite being biologically male
from birth, April felt trapped in the wrong
body. Afer a deliberate drug overdose, and
tme in a psychiatric hospital, he moved to
France, and became friendly with a troupe
of female impersonators. He joined the
troupe, began taking female hormones,
and, in 1960, underwent surgery. His testes
and scrotum were amputated, and a vagina
was constructed from the inverted skin of
his penis. No womb or ovaries could be
constructed, nor could his chromosomes be
altered. Only six months later, post-operatve
George, who adopted the name April Ashley,
met Arthur Corbet for the frst tme. Arthur
was aware at all tmes that April was a
male-to-female transsexual. The pair fell in
love, and married in 1963. In the meantme,
Ashley had changed her name by deed poll,
and had received a womans insurance card
from the Ministry for Natonal Insurance. All
was not well in the relatonship, however,
and the pair separated not long afer the
marriage. The queston for Ormrod LJ was
whether Ashley was considered by English
marriage law to be a man, and thus whether
the marriage was void.
First, His Honour considered the criteria by
which a persons sex might be determined. On
the evidence of the medical experts before
him, His Honour listed four possible criteria:
(i) chromosomal factors,
(ii) gonadal factors (i.e., presence or
absence of testes or ovaries),
(iii) genital factors (including internal sex
organs), and
(iv) psychological factors.
4
Secondly, His Honour found that physical
characteristics of a person were, by reason
of their chromosomes, fixed at birth
(at the latest), and cannot be changed,
either by natural development of organs
of the opposite sex, or by medical or
surgical means.
5
Having found this, the
question for His Honour became whether a
persons sex for the purposes of marriage
ought to be determined by reference
to physical characteristics as apparent
at birth, psychological criteria, or some
combination thereof.
His Honour found that only physical
characteristcs as apparent at birth ought to
be determinatve in the case of marriage.
Bearing in mind that Ashley was accepted
as a woman for the purposes of natonal
insurance, His Honour nevertheless
found that marriage was a special kind of
relatonship, because it is the insttuton on
which the family is built, and in which the
capacity for natural heterosexual intercourse
is an essental element.
6
His Honour
helpfully conceded that [marriage] has, of
course, many other characteristcs, of which
companionship and mutual support is an
important one,
7
but maintained that the
characteristcs which distnguish it from all
other relatonships can only be met by two
persons of opposite sex.
8
Nor was Ashleys operaton or hormone
treatment sufcient for Ormrod LJ. In a
breathtakingly outspoken some might say
32
Despite her operation and hormone treatment,
Ashley was deemed not naturally capable of
performing the essential role of a woman in
marriage, whatever that might be ...
boorish judgment, His Honour claimed
that the pastche of femininity
9
exhibited
by Ashley had nearly fooled him, but under
closer and longer examinaton in the witness
boxthe voice, manner, gestures and
attudes became increasingly reminiscent
of the accomplished female impersonator.
10

Despite her operaton and hormone
treatment, Ashley was deemed not naturally
capable of performing the essental role of a
woman in marriage,
11
whatever that might
be, and the marriage was held to be void.
For the purposes of marriage, a persons
sex was to be determined by the physical
characteristcs that they exhibited at birth,
and no subsequent changes could afect
that determinaton.
Later, in R v Tan,
12
this restrictve biological
test was extended to determining a persons
sex for the purposes of criminal liability too, in
the interests of certainty and consistency.
13

Ormrod LJs test, founded on the supposed
special nature of marriage, came to be the
sole test for determining a persons sex across
all felds of law in the United Kingdom. The
publicly available register of births recorded a
persons sex at birth, based on the restrictve
biological test, and changes were only possible
if there had been a clerical error, a process
that could cause grave embarrassment to a
transsexual person if their birth sex became
known to those around them.
14
New birth
certfcates, required for passport applicatons,
pension insurance, university enrolment and
public service employment, were not issued
to post-operatve transsexuals, like April
Ashley.
15
It was a low point in the history of
the common law.
III. THE LAW IN AUSTRALIA:
TOWARDS A BROADER TEST
Corbet v Corbet was a marriage case,
and the heightened tension around that
insttuton arguably coloured the judgment
of Ormrod LJ, leading English jurisprudence
down the
path of the restrictve
biological test in the interests
of certainty and consistency. In
contrast, the frst Australian case to deal with
the issue of determining a persons sex was a
criminal case. In R v Harris and McGuiness
16

the New South Wales Court of Criminal
Appeal atempted to defne a male person
for the purposes of s 81A of the Crimes Act
1900 (NSW), which used to criminalise a
male person atemptng to procure an act
of indecency with another male person. Lee
Harris was a post-operatve male-to-female
transsexual, while Phillis McGuiness was a pre-
operatve male-to-female transsexual. They
were both charged with ofering to engage in
oral intercourse with two male undercover
police ofcers in Darlinghurst. Both Street CJ
and Mathews J were anxious to point out that
Corbet was not a binding authority on them,
and in any event it was not a criminal case.
17

Although R v Tan was a criminal case, Mathews
J dealt it short shrif, saying it was just an
applicaton of the rule in Corbet, and there
was litle, if any, independent consideraton
of the issues relatng to transsexuals.
18
In Harris, Her Honour (with whom Street CJ
agreed) found that, in determining criminal
liability, the court ought to have regard to
the relevant circumstances at the tme of
the behaviour.
19
Two conclusions followed
from this: frst, a persons chromosomes
were never relevant circumstances; and
secondly, in sexual ofences, the state of
a persons external genitalia ought to be
considered at the tme of the alleged ofence,
regardless of whether they were artfcially
created or were not the same as at birth.
20

Consequently, the Court overturned Lee
Harris convicton on the grounds that,
as a post-operatve transsexual, she was
not a male person for the purposes of s
81A. Phillis McGuiness was not so lucky.
While acceptng that psychological factors
contributed to a persons sexual identty,
21

Mathews J regretully rejected the argument
that where a persons gender identfcaton
difers from his or her biological sex, the
former should in all cases prevail.
22
Pre-
operatve Phillis McGuiness remained a male
person for the purposes of the Act.
Harris has shaped the way transsexual people
have been treated by Australian law ever
since. In Secretary of Department of Social
Security v SRA,
23
the Harris test was imported
from criminal law into social security law. In
SRA, some kind of surgery was considered
necessary in order for a transsexual person
to be considered a member of their acquired
sex. Black CJ acknowledged that there were
problems with this, but held that a line has
34
to be drawn somewhere.
24
Lockhart J also
regretully adopted this line, notng:
A transsexual who genuinely regards
himself or herself as having achieved
the new sex must fnd life extremely
difcult. Judicial opinions in this
area of the law must be liberal and
understanding, guided by the signposts
of what is in the best interests of
society and the transsexual. They do not
confict in the case of the post-operatve
transsexual, but in my opinion the
confict stll exists in the case of the
pre-operatve transsexual.
25
Secondly, the Court made clear, as in Harris,
that it was not determining anything with
regard to marriage.
26
That bridge was fnally
crossed in Re Kevin.
27
In that case, Chisholm J
defnitvely demolished Ormrod LJs restrictve
biological test. At the heart of Chisholm
Js judgment was the queston of whether
marriage was special in the sense that a
diferent test from that in Harris and SRA
ought to be adopted.
His Honour considered two arguments for
having a special test for marriage: (i) that
marriage is a social insttuton having its
origins in ancient Christan law, and (ii) that it
is intrinsically connected with procreaton.
28

His Honour conclusively rejected both
propositons. With regard to the frst, His
Honour said while he accepted its truth,
nevertheless ancient Christan law provided
no guidance on how to determine a persons
sex for the purposes of marriage. With regard
to the second propositon, His Honour also
rejected the necessary connecton between
marriage and procreaton, citng examples of
infertle couples with valid marriages.
29
Instead, His Honour found that man and
woman ought to be given their ordinary
contemporary meanings, and so the list
of criteria to take into account when
determining a persons sex was not limited
to physical criteria, even for the purposes of
marriage.
30
His Honour said:
To determine a persons sex for the
purpose of the law of marriage, all
relevant maters need to be considered.
I do not seek to state a complete list,
or suggest that any factors necessarily
have more importance than others.
However, the relevant maters include, in
my opinion, the persons biological and
physical characteristcs at birth (including
gonads, genitals and chromosomes);
the persons life experiences, including
the sex in which he or she is brought
up and the persons attude to it; the
[ His Honour said ] ancient Christian law provided no
guidance on how to determine a persons sex for the
purposes of marriage. [...] His Honour also rejected
the necessary connection between marriage and
procreation, citing examples of infertile couples
with valid marriages.
To its credit, the common law in Australia has
largely managed to recognise and protect the
rights of transsexual people even without
human rights legislation.
persons self-percepton as a man or a
woman; the extent to which the person
has functoned in society as a man or a
woman; any hormonal, surgical or other
medical sex reassignment treatments
the person has undergone, and the
consequences of such treatment; and
the persons biological, psychological and
physical characteristcs at the tme of
the marriage.
31
Chisholm Js judgment was upheld by the Full
Court of the Family Court of Australia.
32
IV. THE CURRENT STATE
OF THE LAW
The situaton in the United Kingdom has
fnally changed as a result of several appeals
to the European Court of Human Rights
based on the European Conventon on
Human Rights.
33
In 2004 the UK Parliament
passed the Gender Recogniton Act. Under
the Act, transsexual people can apply to
a Gender Recogniton Panel for a Gender
Recogniton Certfcate.
34
They must provide
evidence they that have been diagnosed
with gender dysphoria, have been living in
their acquired sex for two years or more,
and intend to contnue living in that sex
untl death.
35
Evidence of surgery is not
required. If satsfed, the Panel can then
issue a Gender Recogniton Certfcate, with
which the applicant can get a new birth
certfcate, which can be used in all the ways
discussed above. As a result, transsexuals in
the United Kingdom can fnally be accepted
as members of the sex to which they always
felt they belonged.
Yet it is worth comparing Australian laws
tolerance and understanding with the
narrow-mindedness of Corbet, and notng
that human rights legislaton is not always
necessary for the law to protect all who come
before it from injustce. Unlike the European
Court of Human Rights, the NSW Court of
Criminal Appeal did not base its objectons
to Corbet on human rights legislaton, nor
did the Family Court of Australia. To its credit,
the common law in Australia has largely
managed to recognise and protect the rights
of transsexual people even without human
rights legislaton.
As Street CJ said back in 1988, the tme has
fnally come when the beacon of Corbet
will have to give place to more modern
navigatonal guides to voyages on the seas of
problems thrown up by human sexuality.
36
36 35
REFERENCES
1. Genesis 1:27, New King James Bible.
2. Rachael Wallbank, Young People with Transsexualism: the Contemporary Australian Experience (February
2010) True Colours, <htp://www.truecolours.org.au/publicatons/ypwts.html>
3. Corbet v Corbet (orse. Ashley) [1971] 2 All ER 83.
4. Ibid 100.
5. Ibid 104.
6. Ibid 105.
7. Ibid.
8. Ibid 106.
9. Ibid 104.
10. Ibid.
11. Ibid 106.
12. R v Tan [1983] QB 1053.
13. Ibid 1064.
14. Cossey v United Kingdom (1990) 13 EHRR 622 per Martens J, 7.
15. Ibid.
16. R v Harris and McGuiness (1988) 17 NSWLR 158.
17. See R v Harris and McGuiness (1988) 17 NSWLR 158, 161 (Street CJ); 188 (Mathews J).
18. Ibid 189.
19. Ibid 192.
20. Ibid.
21. Ibid 191.
22. Ibid 193.
23. Secretary of Department of Social Security v SRA (1993) 43 FCR 299.
24. Ibid 306.
25. Ibid 327.
26. See, eg, Secretary of Department of Social Security v SRA (1993) 43 FCR 299, 306 (Black CJ); 327 (Lockhart
J).
27. Re Kevin [2001] FamCA 1074.
28. Ibid [282].
29. Ibid [285].
30. Ibid [328].
31. Ibid [329].
32. Atorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94.
33. See, for eg, Cossey v United Kingdom (1990) 13 EHRR 622; Goodwin v United Kingdom (2002) 35 EHRR 18.
34. Gender Recogniton Act 2004 (UK) c 7, s 1(1).
35. Gender Recogniton Act 2004 (UK) c 7, s 2(1).
36. R v Harris and McGuiness (1988) 17 NSWLR 158, 161.
FEDERAL COURTS FEES UP -
ACCESS TO JUSTICE DOWN
BY MICHAEL LEGG*
Access to justce has been expressed as a
human right, with justce being equated with
a fair and public hearing by a competent,
independent and impartal tribunal
established by law.
1
An important challenge
is ensuring that access to justce is a reality
and not just an aspiraton. The main obstacle
to access to justce in 2013 is cost.
What then should we make of a government
that steeply increases the costs of resortng
to the federal courts for average citzens
while at the same tme pushing citzens
towards alternatve dispute resoluton (ADR)
processes, such as mediaton?
A subtle shift is underway in Australia. It
was first signalled by the 2009 Attorney-
Generals Access to Justice Taskforce,
which sought to broaden what access to
justice means.
2
More recently, the former
Attorney-General for Australia at the time
of the fee increases stated:
3
Access to justce extends beyond the
courts. It incorporates everything we
do to try to resolve the disputes we
encounter from the litle things, such
as using informaton found on the
internet, calling a helpline or asking for
help from a friend or family member,
through to the big things, like fling an
applicaton in a court.
Court fees have the capacity to send
pricing signals to people that the courts
should not be the frst port of call for
resolving disputes and to encourage them
to use ADR processes where appropriate.
This shif coincides with signifcantly
increased court fees in federal jurisdictons:
the Federal Court, the Family Court and the
Federal Circuit Court (formerly the Federal
Magistrates Court).
4
This means the vast
range of maters these courts deal with
from divorce, family law and child support to
38 37
bankruptcy, administratve law, human rights,
privacy, consumer maters and copyright
are becoming more expensive for the
hundreds of thousands of Australians who
use the federal courts every year. While fees
vary across the federal courts and some fee
reductons or waivers are available to low
income earners, the cost of commencing
proceedings in the Federal Court was, for
example, increased to $938 from July 2012
and increased again to $1080 from January
2013, while setng a mater down for hearing
was increased to $1875 and then to $2155.
The January 2013 fee increases were a 15%
increase on prevailing fees for individuals.
The fee increases also included a 40%
increase on prevailing fees for corporatons
and established a new category of fees for
listed corporatons that was 150% of the fee
for a corporaton.
5
The January 2013 court
fee increases are forecast to allow the Federal
Government to raise $76.9 million in new
revenue over the next four years.
Individual disputants will weigh the need
for litgaton with other concerns such as
its expense. When the new court fees,
individually and cumulatvely, are compared
with the full-tme adult average weekly total
earnings in Australia of about $1500,
6
it is
clear that court fees would be a substantal
expenditure for the average Australian. When
combined with the other costs associated
with litgaton it is difcult to disagree with
former Chief Justce Doyle of the Supreme
Court of South Australia who has observed
that the average person cant aford to get
involved in substantal civil litgaton, even
a fairly well-of person.
7
Court fees are not
the only cost in seeking access to justce, but
the higher they are the greater the burden
imposed on individuals.
This may mean that an individual who
otherwise needs access to the court system
but cannot aford it has no choice but to
turn away. The increased fees apply across
the board regardless of whether ADR is
appropriate for the partcular dispute. The
decision of the individual may also have
more far-reaching social ramifcatons -
[b]asic civil libertes have been won and
secured by people who sometmes stand
up for their rights and assert them.
8
The
respect for the rule of law, protecton of rights
and promulgaton of precedents will all be
harmed if the courts cannot be meaningfully
accessed. Government must be conscious
of this connecton between the decision of
the individual disputant and the larger public
policy concerns.
The realpolitk is that the Federal Government
is redefning access to justce to include a
host of actvites other than the provision of
publicly-funded courts as well as legitmising
the use of higher fees to deter citzens from
using the courts. The mantra of access
to justce is invoked here to obscure the
governments self-imposed fscal constraints.
Encouraging resilience, self-reliance, and
educatng people about how to resolve
disputes amongst themselves or with the help
of a third party are worthy goals. Broadening
the range of dispute resoluton optons
and encouraging their use may allow for
compromises that beter satsfy all disputants
interests compared to going to court.
Relatonships may be preserved and creatve
solutons adopted. Disputants and lawyers
should be thinking hard about what dispute
resoluton method promises to best achieve
their aims. But ADR, let alone phone calls
and internet searches, cannot be equated
with access to justce. With ADR, unlike a
court, the dispute is not necessarily decided
according to law. It may be, but that is not
known because ADR is usually conducted in
secret. Other interested partes, including
the media, are not able to be present. The
procedural protectons mandated by and for
courts do not necessarily apply.
For the fundamental right of access to justce
to be upheld disputants should be able to
make a genuine choice about whether ADR or
the courts beter meet their needs.
Enabling disputng partes to make that choice
means ensuring they are aware of the relatve
advantages and disadvantages of various
forms of ADR as well as litgaton. The civil
justce system performs an important role in
underwritng our civil rights, accordingly there
will be tmes when litgaton is a necessity.
Educatng citzens and training lawyers about
the various methods available for resolving
disputes is the way in which ADR and the
courts can be used most efectvely.
Under the current approach the government
is running the risk of creatng a two-tered
system of justce; with the haves, mainly
corporatons and governments, able to aford
litgaton if they cant achieve their aims
through mediaton and the have nots, the
rest of us, forced to accept whatever ADR
ofers because we cannot aford to litgate.
Moreover, removing the ability to resort to
the Courts for one side of a dispute can then
infect the equality of the partes bargaining
positons when undertaking ADR.
Raising the fnancial bar to accessing the
courts, which provide the fair and public
hearing that is a human right, undermines
access to justce.

* Associate Professor, Faculty of Law,
University of New South Wales. The content of
the artcle was also the subject of the authors
submission and testmony to the Senate Legal
and Consttutonal Afairs Commitee Inquiry
on Impact of federal court fee increases since
2010 on access to justce in Australia.
REFERENCES
1. See Internatonal Covenant on Civil and Politcal Rights, opened for signature 16 December 1966, 99
UNTS 171 (entered into force 23 March 1976) art 14. See also Universal Declaraton of Human Rights,
GA Res. 217A (III), UN Doc A/810 at 71 (1948) art 8.
2. Access to Justce Taskforce, Atorney-Generals Department, A Strategic Framework for Access to Justce
in the Federal Civil Justce System, September 2009, p 34.
3. Former Atorney-General for Australia, The Hon Nicola Roxon MP, Launch of Your Guide to Dispute
Resoluton, Canberra, 23 July 2012. See also Atorney-General for Australia, Mark Dreyfus QC MP,
Defending Justce in Modern Australia: A fair go under the law, John Curtn Insttute of Public Policy,
Perth, 20 May 2013.
4. Federal Court and Federal Magistrates Court Regulaton 2012 (Cth) and Family Law (Fees) Regulaton
2012 (Cth).
5. Explanatory Statement Select Legislatve Instrument 2012 No 280 p2.
6. Australian Bureau of Statstcs, 6302.0 - Average Weekly Earnings, Australia, Nov 2012.
7. Victorian Law Reform Commission, Civil Justce Review, Report No 14 (2008) 434.
8. The Hon Michael Kirby, Mediaton: Current Controversies and Future Directons (August 1992)
Australian Dispute Resoluton Journal 139, 146.
For the fundamental
right of access to
justice to be upheld
disputants should be
able to make a genuine
choice about whether
ADR or the courts better
meet their needs.
40
The Western world have long insisted on
the morality of liberal democratc capitalism
as the model to be emulated. We speak of
democratsaton, liberalisaton, secularisaton
of states at a tme when rivalries are pushing
America to show that it remains the sole
global power. Over the past two decades,
rhetoric of humanitarian interventon, the
responsibility to protect and antcipatory
self-defence have been used to justify
military interventon in sovereign states. The
constructon of the invadee as uncivilised,
primitve, and undemocratc compared with
the morality and freedom-bringing invader
has had a signifcant impact on internatonal
law. These interventons are linked with
neoimperialism, as the West enforces its
views upon those unable to efectvely resist.
Rather than examining the formaton of the
UN and its insttutons, this paper will discuss
the more recent interventons in Kosovo
and Libya, and the invasions of Afghanistan,
Iraq, and Georgia, arguing that they are
examples of neoimperialism. In partcular,
the rhetoric of the Long War
1
on terror is
infuenced by this doctrine, as seemingly
incompatble liberalism and confict converge
with neorealism to form the neoconservatve
foreign policy of the Bush and Obama
administratons. America and exceptonalism
remain crucial to examine in light of the war
on terror, as does the contnued Manichean
constructon of the East/West into good and
evil, heavily infuenced by American Christan
and liberal rhetoric.
RACE AND RIVALRY:
NEOIMPERIALISM, INTERVENTION AND
THE CIVILISING MISSION POST-1991
BY JOSH BEALE
The power of the US remains key to
understanding Western infuence over
internatonal law. American exceptonalism,
as Nabers and Patman write, is the belief
in the uniqueness of [Americas] founding
liberal principles...and the convicton
that the US has a special destny among
natons.
2
Thus the aim of the US becomes
[transforming] an anarchic, confict prone
world into an open, internatonal community
under the rule of law.
3
Through maintaining
infuence over internatonal law, the US can
shape this system around Western values,
even without direct involvement. This is
9/11 era has become one of actve, muscular
liberalism in the words of Britsh Prime
Minister Cameron,
8
whereby liberal rhetoric
of freedom is used in a way that entails
enforcing freedom. Thus this Western concept
of liberalism maintains a heavy sway over
the directon of internatonal law. Reid goes
on to argue that liberalism is based around
the premise of spreading peace by spreading
democracy and market capitalism.
9
Similarly,
Hartmann writes that new global economic
regulatons are disciplinary neoliberalism
forcing states to act according to Western free
market principles rather than protectonist
ones.
10
In the area of interventon,
internatonal law based on liberalism simply
allows for the West to intervene in order to
maintain their power. Knox argues that the
dominant positon on interventon argues
the desirability of spreading democracy and
human rights through war.
11
. Thus liberalism
becomes linked with Eurocentric modernity,
recognising the primacy of democracy and
inferiority of non-Western regimes. Reid
argues that liberalism is thus used to atack
rivals pursuing diferent politcal projects,
12

a Marxist critque which can be applied to
atempts to secularise the Muslim world,
discussed below.
The links between liberalism and modernity
can be regarded as closely linked to
neoimperialism, barely masked by the
Western concept of the humanitarian
interventon or the responsibility to protect.
US Natonal Security Advisor (later Secretary
of State) Rice stated in
2004 that America
is taking the
side of the
millions of
people in the
Muslim world
who long for
freedom, who
cherish learning
and progress
Over the past two decades,
rhetoric of humanitarian
intervention, the
responsibility to protect
and anticipatory self-
defence have been used to
justify military intervention
in sovereign states.
the insttutonal power that Barnet and
Duvall outline; America can establish global
insttutons that...further American interest
and spread American values.
4
Thus Western
power becomes not just compulsory power,
the use [of] coercion and intmidaton...to
develop and sustain [Western] supremacy,
5

but extends to guidance, and steering.
6
This
is evident through the insttuton of justfed
interventon, the subject of this paper.
From a theoretcal perspectve however,
it is difcult to reconcile this Western
ideology constructed as peaceful, liberal
internatonalism with the number of conficts
conducted in the name of liberalism. Reid
claims instead that liberalism has failed to
realise its pacifc ends.
7
Indeed, the post-
P
H
O
T
O

B
Y

T
H
O
M
A
S

S
M
I
L
L
I
E
42
and who seek economic opportunity,
13
going
on to state that we need to get the truth of
our values and our policies to the people of
the Middle East.
14
This muscular liberalism
thus entails interventon when a naton is not
following a Western noton of governance.
Beres, a supporter of these interventons,
writes that the concept of the civilised naton
contnues to make legal and geopolitcal sense
in the present world order,
15
highlightng this
neoconservatve foreign policy which treats
some natons as more civilised than others.
Indeed, this Eurocentric neoimperialism relies
on a stark distncton between modern and
primitve natons
16
justfying spreading
democracy and peace to those natons
who do not possess it. Through framing the
pursuit of justce
in Western terms,
those who fght for
counter-hegemonic,
transnatonal justce are
excluded, while the West is
[shielded] from critcal scrutny.
17

Thus humanitarian interventon is a
Western construct used as a means of
actvely promotng liberalism.
Drawing on an example of humanitarian
interventon the 1998 NATO-spearheaded
interventon in Kosovo the nature of this
doctrine becomes clear. Glennon writes that
the US and NATO abandoned the old rules
of the United Natons Charter that prevented
the use of force
18
and instead moved toward
a system much more tolerant of military
interventon but [with] few hard and fast
rules.
19
While Glennon goes on to argue that
litle will be lost in the atempt to forge a
new system of rules,
20
it can be noted that
the West was simply able to disregard the
Charter and pursue its own aims. While Cohen
argues that this may be due to the absence
of obvious or agreed upon mechanisms of
resolving...disputes,
21
if the West can challenge
the very base of internatonal law like this,
then internatonal law is certainly subject to
Western interpretaton of these mechanisms.
As Knox writes, states were no longer the
possessor of unparalleled sovereign rights
where a state failed its obligatons, it was
necessary for the internatonal community to
intervene.
22
The West then becomes the judge
of this failure of obligatons, as was seen when
it was decided that the situaton in Kosovo
formed a threat, requiring a response from
the guardians of the system, actng outside...
normal channels
23
but nevertheless able to
intervene with its liberal values of peace.
Thirteen years afer Kosovo, the Libyan
interventon marked another signifcant
development in Western justfcaton for the
use of military force. Defned in 2005, the
responsibility to protect placed the primary
responsibility of protectng civilians from
ICC-level crimes on the naton-state, but the
internatonal community could intervene
should the state be unwilling or unable to
fulfl this responsibility
24
thus ceding the
sovereignty of uncivilised states to the more
civilised West. Security Council Resoluton
1973 permited the use of all necessary
measures (i.e. force) to protect civilians and
civilians populatons under threat of atack.
25

This resoluton passed the Security Council
despite Russia and Chinas general contempt
towards Western interventon, perhaps
due to the strictly limited mandate that the
resoluton contained. Yet, Obama, Sarkozy
and Cameron stated that it is impossible to
imagine a future for Libya with Qaddaf in
power.
26
Thus a mandate protectng civilians
was interpreted by the West as allowing
for regime change, on the grounds that
regime change would protect civilians.
27

The eventual downfall of Qaddaf was
substantally atributable to NATO support for
rebel ofensives, again showing that the West
retains power over internatonal law as a
means of spreading democracy and toppling
dictators.
In contrast to Kosovo and Libya, the
intervenor in the 2008 interventon in
Georgia was Russia, who claimed grounds
of humanitarian interventon. As Knox
believes, this interventon was evidence of
the severely weakened positon of the US;
humanitarian interventon did not occur
with the consent of the US but instead was
commited by one of its rivals.
28
Thus it could
be theorised that the West is beginning to
lose control over internatonal law, following
the economic weakening of the 2008 global
fnancial crisis, the rise in military power of
Americas rivals, and the decline in politcal
support for contnuing Western interventons.
However, while the US critcised Russia for
its interventon, it was essentally treated
as a minor issue rather than one requiring
a mass internatonal response. Indeed,
perhaps the lack of signifcant US strategic
interest in Georgia, or the unwillingness to
intervene militarily with what Russia deemed
a domestc issue, meant that the US did not
take substantal acton. Thus Knoxs claim
of dying US power is not made apparent,
especially when the Libyan interventon is
examined. Instead, there are greater grounds
for arguing that US rivals are challenging the
dominance of the West in internatonal law.
These three interventons were based
on humanitarian grounds. However, the
link between intervening to help victms
of primitve regimes is closely linked to
the racialisaton of Muslims
throughout the war
on terror. The
the dominant position
on intervention argues
the desirability of
spreading democracy
and human rights
through war
The construction of the
invadee as uncivilised,
primitive, and undemocratic
compared with the morality
and freedom-bringing invader
has had a significant impact
on international law.
44 43
The invasion of Afghanistan in 2001 following
the terrorist atacks on September 11 displays
a link between the neoimperialism discussed
above and internatonal law as a Western
concept, maintaining Western power. The
constructon of Taliban-led Afghanistan as
an ongoing threat to security
35
displays the
ease by which the US constructed the state
of Afghanistan as a threat requiring a military
response, suggestng that the indeterminacy
of internatonal law
36
allowed for the West
to construct a soluton fulflling their policy
goals. Subsequently, the 2003 invasion of
Iraq by Americas coaliton of the willing was
carried out in pursuit of the war on terror,
but without direct approval from the UN.
Despite protests, and the threat that the
coalitons interventon would be challenged,
37

the US-led West contnued the interventon,
as it deemed it necessary to fght terrorism
on every front. The shaping of the world as
Manichean by Bush either you are with us,
or you are with the terrorists
38
makes these
links between modernity and liberalism clear.
The noton that force is limited by Artcle 2(4)
of the UN Charter is seemingly superseded
by the desire of the West to employ the
strategic use of violence [to] spread freedom,
progress and peace
39
by extending and
reinterpretng internatonal law. Iraq and
Afghanistan represent atempts by the US to
enforce regime change and create secular,
democratc states in the heart of Muslim
world in the place of states which posed a
threat to Western power.
The war on terror has now diversifed from
the ofensives outlined above to a campaign
of targeted assassinatons by American
drones. Beres, supportng these tactcs, writes
that under internatonal law, the legitmacy
of a certain cause can never legitmise the
use of certain forms of violence.
40
He points
exaggerated form of liberalism...associated
with the Bush doctrine
29
has been used
to create a Manichean constructon of the
world into good and evil white and Muslim.
Internatonal law has been used as both an
atempt to justfy [as] legal
30
interventons
in Afghanistan and Iraq, and as a means of
ensuring the Western democratc model
remains at the heart of internatonal law.
This insistence on Western values suggests
that internatonal law is a construct which
allows realisaton of Western politcal goals.
Nazirs descripton of the world as a power
domain comprised of naton states with
vastly difering degrees of power and levels of
control over their sovereignty
31
can thus be
applied to this neoimperial split into West and
Islamic, with the Islam world as incompatble
with the West.
Building on this racialisaton of Islam as
too diferent from Western morality, it
is important to examine the relatonship
between Christanity and liberalism and
the impact it has had on the constructon
of internatonal law, especially following
9/11. Nabers and Patman examine this
relatonship in detail, arguing that the
fusion of evangelism and foreign policy
actvism
32
has led to America adoptng
politcal fundamentalism. They believe that
there is a strong connecton between the
Manichean constructon of the war on terror
which Bush characterised as a long struggle
between good and evil
33
and Christan
fundamentalism. Rojecki echoes these
sentments; no other naton would have
been hopeful enough to try to evangelise for
democracy across the Middle East.
34
These
fundamental Christan values are linked to
foreign policy in a way that further promotes
the liberal spreading of freedom through
violence. Western Christan values, especially
those of the US, thus play a major role within
shaping the norms of internatonal law.
The construction of
Taliban-led Afghanistan
as an ongoing threat
to security displays
the ease by which the
US constructed the
state of Afghanistan
as a threat requiring a
military response
to the indiscriminate murder of civilians
by Islamist terrorist groups as indicatng
that Americas civilisatonal enemies
41
are
primitve, ftng the terms of the discussion
on Eurocentric modernity and New Oriental
primitvity outlined above. Yet he supports
drone strikes from a utlitarian perspectve:
assassinaton as counter-terrorism is
reasonable [because] fewer lives [are] lost
42

ignoring the number of civilian deaths caused
by such tactcs. Indeed, Nabers and Patman
argue that there is a risk of Americas politcal
fundamentalism [replicatng] the norms
of Islamic terrorism.
43
As Rojecki writes,
photos [of tortured Iraqi prisoners] were
incompatble with an image of the United
States as a somewhat nave but nevertheless
well-intentoned moral exemplar.
44
Yet
internatonal law contnues to turn against
Muslims, not the West; Guantnamo Bay
remains an anomaly of internatonal law
created by America and Obamas drone
assassinatons are increasing. Thus Chomskys
view that we must apply the same standards
to ourselves as we do to others
45
becomes
the paradox within internatonal law; the
West as freedom-bringers and the East as
freedom-haters, while both employ violence.
The West remains at the politcal forefront
of the internatonal community. It retains
undeniable infuence over the directon of
internatonal law. I have argued that through
interventons, including those during the
war on terror, internatonal law has been
used to maintain Western power. However,
Chinas rising economic dominance, and the
power China and Russia retain on the Security
Council poses threats to Western power. As
was seen in the Iraq interventon, the US
did not return to the Council to seek explicit
authorisaton but instead took law into its
own hands. Despite this, the infuence that
the West retains over internatonal law is
signifcant, in that freedom and democracy
are seen as necessary internatonal values.
Chomskys view that we must apply the same
standards to ourselves as we do to others
becomes the paradox within international law;
the West as freedom-bringers and
the East as Freedom-haters,
while both employ violence.
46
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12. Schulman, S 2009-2010, Victmized Twice: Asylum Seekers and the Material Support Bar, Catholic
University Law Review, vol. 59, pp. 949-964
13. Shome, R 2012, Mapping the Limits of Multculturalism in the Context of Globalizaton, Internatonal
Journal of Communicaton, vol. 6, pp. 144-165
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REFERENCES
1. Tariq Amin-Khan, New Orientalism, Securitsaton and the Western Medias Incendiary Racism (2012)
33(9) Third World Quarterly 1595, 1596.
2. Dirk Nabers & Robert G. Patman, September 11 and the rise of politcal fundamentalism in the Bush
administraton: domestc legitmizaton versus internatonal estrangement? (2008) 20(2) Global Change,
Peace & Security 169, 170.
3. Ibid 171.
4. Michael Barnet & Raymond Duvall, Power in Internatonal Politcs (2005) 59 Internatonal Organizaton
39, 63.
5. Ibid 62.
6. Ibid 57.
7. Julian Reid, War, Liberalism, and Modernity: The Biopolitcal Provocatons of Empire (2004) 17(1)
Cambridge Review of Internatonal Afairs 63, 63.
8. Mehdi Hasan, More telling than the PMs cynical speech was Labours response to it New Statesman
(London), 14 February 2011, 16.
9. Reid, above n 7, 66.
10. Eva Hartmann, The Difcult Relaton between Internatonal Law and Politcs: The Legal Turn from a
Critcal IPE Perspectve (2011) 16(5) New Politcal Economy 561, 564.
11. Robert Knox, Civilizing interventons? Race, war and internatonal law (2013) 26(1) Cambridge Review
of Internatonal Afairs 111, 112.
12. Reid, above n 7, 68.
13. Condoleezza Rice, War on Terror: Truth is needed for freedom of defence (2004) 70(22) Vital Speeches
of the Day 674, 676.
14. Ibid.
15. Louis Ren Beres, Afer Osama bin Laden: Assassinaton, Terrorism, War, and Internatonal Law (2011)
44(1) Case Western Reserve Journal of Internatonal Law 93, 132.
16. See Knox, above n 11, 112.
17. Nancy Fraser, Who Counts? Dilemmas of Justce in a Postwestphalian World (2009) 41(S1) Antpode
281, 289.
18. See Charter of the United Natons art 2(4).
19. Michael J. Glennon, The New Interventonism: The Search for a Just Internatonal Law (1999) 78(3)
Foreign Afairs 2, 2.
20. Ibid 3.
21. Harlan Grant Cohen, Finding Internatonal Law, Part II: Our Fragmentng Legal Community (2012) 44(4)
New York University Journal of Internatonal Law and Politcs 1049, 1050.
22. Knox, above n 11, 119.
23. Ibid 124.
24. Geir Ulfstein & Hege Fsund Christansen, The legality of the NATO bombing in Libya (2013) 62(1)
Internatonal and Comparatve Law Quarterly 159, 161.
25. Cited in Ulfstein, above n 24, 161.
26. Cited in Ulfstein, above n 24, 165-6.
27. Ulfstein, above n 24, 168.
28. Knox, above n 11, 127.
29. Corinna Mullin, The US discourse on politcal Islam: is Obamas a truly post-war on terror
administraton? (2011) 4(2) Critcal Studies on Terrorism 263, 264.
30. Knox, above n 11, 112.
31. Pervaiz Nazir, War on terror in Pakistan and Afghanistan: discursive and politcal contestatons (2010)
3(1) Critcal Studies on Terrorism 63, 64.
32. Nabers, above n 2, 169.
33. See Nabers, above n 2, 175.
34. David Brooks, In Iraq, Americas shakeout moment New York Times (New York), May 18 2004, A23, cited
in Andrew Rojecki, Rhetorical Alchemy: American Exceptonalism and the War on Terror (2008) 25(1)
Politcal Communicaton 67, 67.
35. Michael Byers, Terrorism, the use of force and internatonal law afer 11 September (2002) 51(2)
Internatonal and Comparatve Law Quarterly 401, 408.
36. See, for eg, Susan Scot, Internatonal Law in World Politcs (Lynne Reiner Publishers, 2nd ed, 2010) 122.
37. See especially Advice re. Iraq Resoluton 1441 from Baron Peter Goldsmith to Prime Minister David
Cameron, 7 March 2003, 13.
38. Cited in Nazir, above n 31, 70.
39. Nazir, above n 31, 65.
40. Beres, above n 15, 119.
41. Ibid 130.
42. Ibid 98.
43. Nabers, above n 2, 182.
44. Andrew Rojecki, Rhetorical Alchemy: American Exceptonalism and the War on Terror (2008) 51(2)
Politcal Communicaton 67, 67.
45. Cited in Mullin, above n 29, 273.
48
We need to change the
stigma attached to
boat people; a label
only exacerbating
political propaganda
and unwarranted
fear.
What kind of person are you? A people
person, a sports person, a black person,
a gay person? Our individual atributes,
whether they be physical, emotonal
or intellectual, which ofen refect only
minor parts of our lives, serve as the fuel
for generalisaton and categorisaton. No
longer are we a unique person who merely
happens to be white, but instead we have
become somebody stripped of individuality
and classifed under a homogenous group
of white people. Whilst these labels
dehumanise and desensitse, we perceive
such labels as normal. Rarely can a female
wear a short skirt without being called a slut
and a male wear pink and take pride in his
appearance without people assuming he is
gay. The individual ceases to exist and in
their place emerges a uniform assembly of
faceless persons. Sadly, the boat people
construct refects this trend in labelling.
Media outlets rarely provide a glimpse into
the lives of individuals seeking asylum. News
stories are presented to us, ofen unwitngly,
in the form of selected video footage for the
purpose of a beter story or to champion
a specifc politcal partys ideals. Seldom are
the plights of real people conveyed and if
they are, all we see is a glimpse. We never
hear a news report about a litle girl who
We need to communicate to our politcians
what we want. We want Australia to support
human rights. We want our politcians to
abide by internatonal law and human rights
standards. We want an efectve and humane
way of processing these desperate people
who want to live peacefully and ofen 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 detenton centres. We want to say no
to ofshore processing where children are
imprisoned, families sufer and men would
rather atempt suicide than live another
moment in a place they thought would be
safe and diferent from the country they fed.
We need to think about how desperate these
people must have been to board a boat with
their children, ofen without ever previously
sailing, in the hope of a beter life. We want
to rid asylum seekers of the stgma of being
identfed as boat people. We do not want
them to remain faceless.
We persecute asylum seekers, simply because
they are seeking their right to asylum. It is
never their fault for being born into a country
of atrocity. What would you do and hope for
if you were in their positon? 7,500 innocent
people are currently imprisoned in Australian
detenton centres. Over 1,200 of these are
children whose detainment can last months
or even years. The fates of these boat people
are decided by our democratcally-elected
leaders; leaders who do not know each
individual story; leaders who treat all of the
individual asylum seekers as one
homogenous boat people category. Our
Prime Minister should be visitng the people
detained, both on the Australian mainland
and ofshore. Our politcians should be less
concerned with politcal power and more
concerned with human rights. Our current
handling of asylum seekers and solutons to
the problem are unjust and circular. It is up
to us to push for efectve reform. It is up to
us to strive for justce.
has arrived in Australia because her parents
want her safe from the tragedy of confict. We
never see a news story explaining that fellow
humans have exercised their right to asylum
and have migrated to a country in the false
belief that it will provide a safe haven; a new
home. Instead, we are exposed only to the
boat people crisis the media forces down
our throats. A crisis far removed from the
realites of the war-torn countries ravaged
by torture, terror and death that the asylum
seekers were (through no fault of their own)
living in and desperately trying to escape. In
our Australian society we unjustfably exploit
the tragedy sufered by those who journey to
this country on boats. It is only from within
the polished walls of Parliament and safe
confnes of our respectve homes where
we have the audacity to condemn the boat
people to lives of misery.
We are compressed by social conditons
that amplify diferences and generate a
fear of the unknown. How can we amend
the asylum seeker issue and change the
discourse surrounding it when governments
are indiferent towards human life because
they are more concerned with their re-
electon than the rights of humans to have
life and liberty?
THE FACELESS BOAT PEOPLE
BY BRITTNEY RIGBY
50
The plight of asylum seekers deserves open
discussion in our homes, our workplaces,
amongst friends, family and colleagues. It
has to become an issue we are all actvely
engaged in, rather than passively exposed
to through mediums that only publish
the limited informaton the government
purposefully feeds us. Media are currently
banned from entering detenton centres
on Manus Island and Nauru. How can we
expect to be informed of the realites of
these ofshore processing centres when our
government restricts access to reporters
and subsequently the public at large? We
deserve to know what is happening and how
refugees are being treated. We ought to be
reminded of the humanity of these people
the media has made faceless. In essence,
our awareness has been imprisoned by
our government. We have had a tall wall
built around us; a wall of sturdy and cold
sheath which strengthens with tme. A wall
which keeps separate the relatonal being
of those outside the wall- those who have
sought asylum- from the awareness of those
Australian citzens inside the wall. This wall
has obstructed our view from the realites
of the so-called boat people; a wall only
conquerable by those passionate enough
to climb it. It is only afer climbing this wall
when we can empathise with asylum seekers
and become vessels for change.
We need to change. We need to change
how we think about asylum seekers. We
need to change Australias politcal views
about asylum seekers. We need to change
the stgma atached to boat people; a label
only exacerbatng politcal propaganda and
unwarranted fear. Ofshore processing has
dehumanised and criminalised these innocent
people who are only trying to protect their
families. Asylum seekers are not toys, but
human beings enttled to freedom. Seeking
asylum is not illegal. Boat people are human.
In 1992, Julia Baird
1
and I wrote an artcle
ttled Sub-ordinaton,
2
which outlined the
background to the struggle in enabling
women to be priested in the Anglican
Church in Australia.
Since then about a quarter of all Australian
Anglican priests are female. In one sense a
wag could suggest: Youve come a long way,
baby! From the middle of 2013, there are
now four female Australian Anglican bishops.
3
BY COLIN FONG*
SUB-ORDINATION 21 YEARS LATER
Unfortunately and ironically, there are no
practsing female Anglican priests in the
dioceses of Sydney, Ballarat, The Murray
and North West Australia. Many capable
Sydney women have lef Sydney and gone
to be priested elsewhere in Australia.
4
Some
people have become disenchanted with the
church on this subject, they have lef the
church completely.
52 51
In the early years of MOWs foundaton there
was a bit of pushing and shoving. Some MOW
members demonstrated outside and within
synods with some singing and chantng, some
Australian members travelled to London and
demonstrated at the Lambeth Conference
which are decennial assemblies of bishops of
the Anglican Communion convened by the
Archbishop of Canterbury.
14

Some church people argue about the
centrality of scripture in the way they
conduct their lives. Yet we all like to select
the bits which suit us. The scriptures talk
about divorce and for centuries the church
has censured divorcees, yet today even in
Moore College you have divorcees on staf.
Leading evangelical Sydney churches have had
divorced priests. Senior evangelicals have had
gay ofspring yet the church regularly pillories
the existence of gays.
In 2011 Moore College established the
Priscilla and Aquila centre which aims to
encourage and promote further thinking
about the practce of Christan ministry by
women, in partnership with men. Is there
anywhere a debate about the possibility
of female priests? This is almost akin to
the contemporary debate we are having
in Australia about tax reform without
considering an increase in the Goods &
Services Tax (GST). Increasing the GST is
pivotal to increasing revenues. Presently both
major politcal partes are excluding increasing
the GST. The federal oppositon is prepared to
discuss it and if it is an opton, claim to take it
to the next federal electon in 2016.
Why have a Priscilla and Aquila centre
without considering the full roles women can
play in church needing womens gifs?

*Sessional lecturer, University of New South Wales,
Faculty of Law
One Anglican male priest once suggested that
to ordain a female was akin to ordaining a
meat pie.
5
The irony hinted at earlier is poignant since
a lot of lobbying from the Movement for the
Ordinaton of Women (MOW) originated in
Sydney and one of its founders was Dr Patricia
Brennan, died on 6 March 2011.
6
Last year, a
book was published outlining the history and
struggle for Anglican womens ministry and
dedicated to Brennan.
7

In November 2013, MOW held a conference
to celebrate the 20th anniversary of the 1992
priestng of Anglican women in Australia.
8

Unfortunately during the conference we
heard the English synod rejected the
proposal for female bishops, by the
narrowest of votes.
9
If you believe you have gifs, but cannot
exercise them, how would you feel? The
scriptures already suggest that individuals
should utlise the gifs we are given.
10

However the ability of being a priest has
resistance within some parts of the
Australian Anglican Church.
Our prime minister, Julia Gillard scored
enormous kudos by labelling the leader of
the Oppositon, Tony Abbot, a misogynist.
11

I would like to suggest perhaps this label
might be appropriate to parts of the Sydney
Anglican Diocese.
I receive an unsolicited publicaton of Moore
College, the Anglican college for training future
priests in Sydney. It is called Moore Maters
and in the past year and a half I have received
about four issues. Yet in not one of these
issues have they acknowledged one of their
graduates, Genieve Blackwell has been made
a bishop. I am sure if one their male graduates
was made a bishop, this would be yelled from
the roofops! Blackwells appointment has
been noted in the secular media
12
and even
in the New South Wales parliament.
13

REFERENCES
1. Currently a respected columnist with the Sydney Morning Herald
2. Polemic, Volume 3, Issue 1, May 1992 pp 46-50
3. Kay Goldsworthy (Perth, 2008), Barbara Darling (Melbourne, 2008), Genieve Blackwell (Wagga Wagga,
2012), Alison Taylor (Brisbane, 2013)
4. Diane Nicolios was appointed in charge of womens ministry within the Sydney Diocese, and within a
number of years resigned to become a priest in Melbourne.
5. Atributed to Father Ian Herring and the ttle of a flm: Fully ordained meat pie, Film Australia, 1987
htp://www.youtube.com/watch?v=t5HSFvCLyS0
6. Apart from her involvement with MOW, Brennan was in charge of the Sexual Assault Unit at Liverpool
Hospital and subsequently renamed in her honour as the Brennan Unit. Part of the plaque installed
in the Unit reads: Dr Patricia Brennan had boundless energy and ferce drive and determinaton. She
campaigned vigorously for social justce and preventon of interpersonal violence. She had a creatve
mind and a quirky sense of humour which enabled her to overcome obstacles others would fnd
insurmountable.
7. Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretcs: Anglican womens ministry, Sydney, UNSW
Press, 2012
8. Johnson, C Women congregate to celebrate ordinaton, Canberra Times 21 November 2012 p 7
9. Sherlock, P Why Anglican women can be bishops in Australia but not England The Conversaton 21
December 2012
htp://theconversaton.com/why-anglican-women-can-be-bishops-in-australia-but-not-england-11337
10. I Corinthians 12: 1-31
11. Transcript of Julia Gillards speech 10 October 2012
htp://www.smh.com.au/opinion/politcal-news/transcript-of-julia-gillards-speech-20121010-27c36.html
or via YouTube htp://www.youtube.com/watch?v=SOPsxpMzYw4
12. Brown, M Jensen begs of as deputy consecrates woman bishop Sydney Morning Herald 31 March 2012
htp://www.smh.com.au/nsw/jensen-begs-of-as-deputy-consecrates-woman-bishop-20120330-1w3ha.html ;
Right Reverend Genieve Blackwell, 50 - 10 questons Weekend Australian 5 May 2012
htp://www.theaustralian.com.au/news/features/right-reverend-genieve-blackwell-50/story-
e6frg8h6-1226343342822
13. Tribute to Archdeacon Genieve Blackwell New South Wales Parliament Legislatve Assembly
Parliamentary debates 6 March 2012 p 9021 htps://www.parliament.nsw.gov.au/prod/parlment/
hansart.nsf/V3Key/LA20120306052?open&refNavID=HA4_1
14. See the front cover of Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretcs: Anglican womens
ministry, Sydney, UNSW Press, 2012
54
THE ICRC CUSTOMARY LAW STUDY:
A SMALL STEP TOWARDS MORE
HUMANE WARTIME PRACTICES?
BY DANIEL REYNOLDS*
The Internatonal Commitee of the Red
Cross Customary Law Study
1
is a 5,000 page,
seven-kilogram document reportng on the
current status of customary internatonal
humanitarian law. It was published in
2005 afer 10 years of extensive research
and consultaton with experts from nearly
50 countries. Despite these herculean
proportons, the study has been the subject
of serious critcism by governments,
internatonal lawyers and judges, while
receiving lukewarm acceptance in other
contexts. As customary law is the most
signifcant source of internatonal law
outside of treates given its capacity to bind
countries despite their non-ratfcaton of
any protocol and as the ICRC plays such a
central role in the general administraton of
internatonal humanitarian law, such a report
has the potental to be extremely signifcant.
In light of this, critcal evaluaton of this study
is crucial, and will be carried out here having
regard to three key aspects:
of divine principles, but on a fabric of
ratonal acts, woven through a multplicity
of relatons over tme.
5
The resultng
ambiguites have led some academics
to label customary internatonal law as
doctrinally incoherent,
6
and behaviourally
epiphenomenal,
7
the later phrase coined
to describe the game theory view that
what appears to be states compliance with
internatonal law is in fact nothing but an
exercise in self-interest, with co-operaton
occurring only where it is advantageous to
all partes.
8
That view, however, tends to
discount the importance of opinio juris (see
defniton below) as a legitmatng force
in customary internatonal law, while the
concerns about ambiguites in the law are
exactly what this study aims to address.
Given the diversity of opinions that exist on
customary internatonal law, the theoretcal
assumptons that form the backdrop of the
ICRCs approach to the study are hugely
important if not determinatve as to the
validity of its conclusions. Some aspects of
this have not been contentous, such as the
Statute of the Internatonal Court of Justces
characterisaton of customary internatonal
law as a general practce accepted as law,
9

or its widely accepted dual criteria of state
practce (usus) and the belief that such
practce is required, prohibited or allowed,
depending on the nature of the rule, as a
mater of law (opinio juris sive necessitats).
10
Beyond these setled principles, the ICRC
was faced with a theoretcal decision
between adoptng an inductve (or
traditonal) approach to establish the
existence of customary internatonal law
rules, or a deductve (or modern) one.
11

The inductve approach tends to emphasise
state practce, and was evident in Lotus
where the Permanent Court of Internatonal
Justce inferred a general custom about
objectve territorial jurisdicton over ships
on the high seas from previous instances
The studys methodology, in partcular
the choice of legal materials in
establishing state practce and
opinio juris
2
;
Its legal conclusions, using its rule
against bombardment
3
as a case study
for the robustness of its results; and
Critcal recepton of the study,
considering the responses of states
and legal professionals, which in turn
draw upon practcal, jurisdictonal,
insttutonal and motvatonal
observatons about the study.
METHODOLOGY
The ICRC project was bound to encounter
difcultes from the start, as customary
internatonal law is an inherently
contentous area, laden with defciencies,
loopholes, and ambiguity,
4
and restng
not on a rock-solid natural law basis
of state acton and acquiescence; whereas
the deductve emphasises opinio juris as it
focuses primarily on statements rather than
actions, and was heavily relied on in the
Merits decision in Nicaragua.
12

Though claiming to adopt an approach
that considers state practce and opinio
juris in equal measure, the ICRC study in
reality appears to lean toward a deductve
approach, with extremely litle evidence of
state practce that could not equally be said
to be evidence of opinio juris. While some
infuental theorists have endorsed such
methods as helpfully progressive,
13
ultmately
it is states acceptance of the study that will
determine its future infuence. Here we see
sceptcism of the way the study confates the
two criteria, with the United States retortng
that opinio juris cannot simply be inferred
from practce.
14
Henckaerts (co-author of the
study) responds to this with the justfcaton
that without a clear mathematcal threshold
of how extensive and uniform state practce
has to be, the density of practce shown will
depend instead on the subject mater, and
therefore sparse practce is no barrier to
establishing a customary rule if its relevance
arises only sporadically:
15
an argument with
some juridical support,
16
but stll lacking
wholesale endorsement by states.
The practcal result of all this is that the
selecton of materials used by the ICRC to
establish customary internatonal law rules
is arguably dubious, with an almost exclusive
focus on verbal materials, such as military
manuals and treates, at the expense of
materials outlining physical state practce.
The use of treaty texts is perhaps the least
problematc of these, as the ICJ considered
in the North Sea Contnental Shelf Cases that
the degree of ratfcaton of a treaty could
be relevant to the assessment of customary
internatonal law.
17
The use of military
manuals, however, is a far more vexed
issue, for two key reasons: the frst is that
56 55
manuals are ofen relied on in the study as a
substtute for physical state practce, posing
challenges for countries such as Germany,
whose military manual
18
is extremely detailed,
but whose military engagement since 1945
has been approximately zero.
19
Secondly, the
use of military manuals to establish opinio
juris is also questonable, as practce that is
refected in manuals is ofen based simply on
government policy, and not a sense of a legal
obligaton, thus falling short of the threshold
to give rise to a customary rule.
20
Proponents
of the study retort that military manuals
consttute a useful second-best opton where
state practce is limited or non-existent, and
that many of these so-called verbal acts in
fact describe practce in actual wars anyhow;
21

but this assumes rather than demonstrates
compliance on the batlefeld, and also fails
to disprove the opinio juris objecton.
LEGAL CONCLUSIONS
The vast majority of the Geneva Conventons
provisions are considered to be customary,
22

and given that these conventons anyhow
enjoy near universal ratfcaton (195 partes),
the study focussed instead on issues arising
in treates that are only partally ratfed, in
partcular the Additonal Protocols, the Hague
Conventon for the Protecton of Cultural
Property, and certain conventonal weapons
treates. Unable to individually assess all 161
rules laid down by the study, this artcle will
instead focus on just one as a case study: Rule
13. The rule is given in the following terms:
Atacks by bombardment by any
method or means which treats as a
single military objectve a number of
clearly separated and distnct military
objectves located in a city, town,
village or other area containing a
similar concentraton of civilians or
civilian objects are prohibited.
23
This mirrors the wording of Artcle 51(5)
(a) of Additonal Protocol I (hereafer API),
which forbids as indiscriminate an atack
by bombardment by any method or means
which treats as a single military objectve
a number of clearly separated and distnct
military objectves located in a city, town,
village or other area containing a similar
concentraton of civilians or civilian objects.
24

Similar wording was also inserted into the
draf of Artcle 26(3)(a) of Additonal Protocol
II (hereafer APII), however this version of
the provision failed to amass enough votes.
25
On the face of it, it would appear that this
rule has gained near-universal consensus
and can reasonably be considered to be
customary law. However, such a conclusion
overlooks several factors, the frst of which
is the extent of ratfcaton of API. Anderson
describes this as the elephant in the room,
the fact that the study tends to proceed as if
API has been universally accepted, whereas at
the tme of the studys publicaton, it in fact
had 163 partes. This might seem like a good
enough majority, but considering that the list
of 29 non-partes includes India, Indonesia,
Pakistan, Iraq, Iran, Israel, Turkey and the
United States, and that the reservatons
made even by ratfying countries are ofen
dauntngly large,
26
the propriety of simply
importng the language of API provisions to
be used as putatve rules of customary law
should be called into queston.
27

Secondly, the evidence supposed to
support the existence of the rule is ofen
of questonable value. As a preliminary
observaton, not a single piece of evidence
forming the Practce Relatng to Rule 13
relates to any physical state practce, a
problem discussed above in the methodology
secton of this artcle. Specifc pieces of
evidence cited are intrinsically fawed too,
such as the US Air Force Pamphlet
28
which
quotes Artcle 24(3) of the 1923 Hague Rules
of Air Warfare (cast in substantally similar
terms to Art. 51(5)(a) of API) but states that
they do not represent existng customary
law. The study goes on to cite a US proviso
to the area bombardment rule stated at the
Diplomatc Conference on the Reafrmaton
and Development of Internatonal
Humanitarian Law Applicable in Armed
Conficts, that the words clearly separated
meant at least sufciently large to permit
the individual military objectves to be
atacked separately,
29
a semantc sleight of
hand which shifs the test from an objectve
consideraton of separaton to a subjectve
consideraton of distnct targetability, which
hinges, amongst other things, on the targetng
capabilites of the weaponry in queston. This
fairly self-serving defniton was also adopted
by three more major world powers at the
conference Canada, Egypt, and the United
Arab Emirates and these endorsements
too are cited by the study, misleadingly, as
supportng state practce for Rule 13.
Finally, in concluding that Rule 13 applies
even in non-internatonal armed conficts, the
study was forced to concede that APII does
not contain the rule (as mentoned above),
but asserted in the alternatve that the rule
was inferentally included as it forbids making
civilian populatons the object of atack a
prohibiton cast in terms reminiscent of the
canonically accepted principle of distncton.
However, to simply treat the prohibiton on
...the selection of materials
used by the ICRC to establish
customary international law
rules is arguably dubious, with an
almost exclusive focus on verbal
materials, such as military
manuals and treaties, at the
expense of materials outlining
physical state practice.
P
H
O
T
O

F
R
O
M

W
W
W
.
I
C
R
C
.
O
R
G
58
fndings, leading some critcs to argue
perhaps over-simplistcally that this suggests
a tacit acceptance on the part of all the
other states.
31
Yet the critcal responses by
lawyers and academics have been diverse
and insightul, and can help to illuminate the
impact on internatonal humanitarian law
the study will have in years to come. Before
considering these critques, it is worthwhile
notng that many commentators have indeed
praised the study as comprehensive, high-
level research
32
and a remarkable feat
and a signifcant contributon to scholarship
and debate;
33
and that the study has
also been invoked by both advocates and
judges in ICTY jurisprudence, for instance in
Hadihasanovi.
34
Considering the study from an insttutonal
standpoint, Threr takes issue with the
propriety of the ICRCs dual role as codifer
and advocate of internatonal humanitarian
law, arguing that the fact that the research is
presented as an exercise in fnding the law is
...considering that the list
of 29 non-parties [to the
API] includes India, Indonesia,
Pakistan, Iraq, Iran, Israel,
Turkey and the United States,
and that the reservations made
even by ratifying countries are
often dauntingly large, the
propriety of simply importing
the language of API provisions
to be used as putative rules of
customary law should be
called into question.
despite its flaws, and with
some deliberative input
from states and other
international actors, the
studys rules may yet
manage to crystallise as
hard and fast custom in
years to come.
suspicious at best and misleading at worst,
35

with Parks also agreeing that this confict of
interest may have led to the study placing too
much weight on its own ofcial statements
as relevant to support the customary nature
of a rule.
36
These concerns are valid in part,
as a body that is invested in the progressive
development of internatonal humanitarian
law will likely be motvated to do more than
merely tdy up the law;
37
however the depth
and breadth of scholarly input that went into
the study should go some way to assuaging
these concerns. Perhaps more defensible
is the critque that the ICRCs stated
humble expectaton that governmental
experts [will] use the study [merely] as a
basis for discussions on current challenges
to internatonal humanitarian law is
disingenuous and risks provoking a backlash,
as it suggests a certain detached neutrality
from the project that is clearly artfcial.
38

Other critques hone in on the research
process itself. Anderson labels the study
area bombardment as coextensive with the
principle of distncton is poor reasoning both
on inductve and deductve grounds, and goes
directly against the clearly demonstrated
intentons of the framers in rejectng the draf
provision containing that exact prohibiton.
Finally, the justfcaton that it has been
included in other instruments pertaining
also to non-internatonal armed conficts
30

does litle to salvage the rule in light of the
foregoing consideratons, especially given
that two of these are bilateral agreements,
and the third is Amended Protocol II
the Conventon on Certain Conventonal
Weapons, which has only fve partes that are
not also partes to APII.
CRITICAL RECEPTION
The fnal aspect that demands evaluaton
is the critcal recepton of the study.
Interestngly, seven years afer the studys
publicaton, the US remains the only state
to have issued an ofcial response to the
an edifce of scholastcism
39
that lacks
signifcant practcal value, as its exhaustve
cataloguing of the views of many smaller
countries might muddy the waters of what
consttutes actual state practce. He also
notes a bias in the selecton of experts for the
various natonal consultatons, none of whom
bring to the table any signifcant sceptcism
about the desirability of an expanding
reach for customary rules.
40
This concern
is further bolstered by Merons observaton
that expert commitee disbanded in 1999
prior to the actual writng of the report,
41

leaving the task of compilaton essentally in
the hands of Henckaerts and Doswald-Beck
alone. These observatons may go some way
towards explaining the over-simplifcaton
evident in the framing of much of the state
practce material, and the tendency for the
study to assert rules as unqualifed customary
norms where the evidence is ofen more
controversial. In any case, the study was
always intended to be only a startng point
for discussion, and now forms the basis of
the ICRCs online customary internatonal
humanitarian law database:
42
despite its
faws, and with some deliberatve input from
states and other internatonal actors, the
studys rules may yet manage to crystallise
as hard and fast custom in years to come.
Whether state practce will become more
humane as a result remains to be seen.
P
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F
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N
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N
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A
R
C
H
I
V
E
S

A
N
D

R
E
C
O
R
D
S

A
D
M
I
N
I
S
T
R
A
T
I
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N
60 59
62 61
19. Anderson, K. (2005) My Inital Reactons to the ICRC Customary Internatonal Humanitarian Law Study,
Kenneth Andersons Law of War and Just War Theory Blog (Nov 15th 2005).
20. Balgamwalla, S. (2005) Review of Conference: The Reafrmaton of Custom as an Important Source
of Internatonal Humanitarian Law, Human Rights Brief 13, no. 2 (2006): 13-16, reportng on a speech
given by Joshua Dorosin (Assistant Legal Advisor to the US) at that Conference.
21. Henckaerts, J-M. (2006) ICRCs Jean-Marie Henckaerts responds to my comments on ICRC Customary
Law Study, Kenneth Andersons Law of War and Just War Theory Blog (Jan 24th 2006).
22. Internatonal Court of Justce, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8
July 1996, ICJ Reports 1996, p. 226.
23. Rule 13, Henckaerts and Doswald-Beck, supra note 1.
24. Additonal Protocol I, Artcle 51(5)(a).
25. CDDH, Ofcial Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.
26. Anderson, supra at 26.
27. Balgamwalla, supra at 27.
28. United States, Air Force Pamphlet 110-31, Internatonal Law The Conduct of Armed Confict and Air
Operatons, US Department of the Air Force, 1976, s 5-2(c).
29. United States, Statement at the CDDH, Ofcial Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 307,
paragraph 50.
30. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1.
31. Bugnion, F. (2004) The Internatonal Commitee of the Red Cross and the Development of Internatonal
Humanitarian Law, 5 Chicago Journal of Internatonal Law 191, 211-212.
32. MacLaren and Schwendimann, supra at 18.
33. Ibid.
34. Prosecutor v. Hadihasanovi and Kubura (Appeal Judgment), IT-01-47-A, Internatonal Criminal Tribunal
for the former Yugoslavia (ICTY), 22 April 2008
35. Threr, D. (2005) The Democratsaton of Contemporary Internatonal Law-Making Processes and the
Diferentaton of Their Applicaton, in Developments of Internatonal Law in Treaty Making 53 (2005).
36. Parks, W. (2005) The ICRC Customary Law Study: A Preliminary Assessment, Proceedings of the Annual
Meetng (American Society of Internatonal Law) , Vol. 99, (March 30-April 2, 2005), pp. 208-212
37. Wolfrum, R. (2005) Developments of Internatonal Law in Treaty Making, Rdiger; Rben, Volker (Eds.).
38. Internatonal Commitee of the Red Cross, Customary law study enhances legal protecton of persons
afected by armed confict, Press Release No. 05 / 17 (17 March 2005).
39. Anderson, K. (2005) My Inital Reactons to the ICRC Customary Internatonal Humanitarian Law Study,
Kenneth Andersons Law of War and Just War Theory Blog (Nov 15th 2005).
40. Ibid.
41. Meron, T. (2005) Revival of Customary Humanitarian Law, The American Journal of Internatonal Law,
Vol. 99, No. 4 (Oct., 2005), pp. 817-834.
42. Internatonal Commitee of the Red Cross (2011) ICRC database on customary internatonal
humanitarian law: new update, ICRC Resource Centre, 18-11-2011 News Release 11/233.
REFERENCES
* My thanks go to Amrita Kapur, who provided invaluable feedback on an earlier version of this paper.
1. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary Internatonal Humanitarian Law, 2
volumes, Volume I. Rules, Volume II. Practce (2 Parts), Cambridge University Press, 2005.
2. There are other methodological critcisms to be levelled at the study which will not be discussed here,
such as its treatment of specially afected states. See Internatonal Law Associaton (2000) Final Report
of the Commitee on the Formaton of Customary (General) Internatonal Law, Statement of Principles
Applicable to the Formaton of General Customary Internatonal Law Report of the Sixty-Ninth
Conference, London, Principle 14
3. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1.
4. Cassesse, A. (1986) Internatonal Law in a Divided World, at 285.
5. Norman, G. and Trachtman, J. (2005) The Customary Internatonal Law Game, The American Journal of
Internatonal Law, Vol. 99, No. 3 (Jul., 2005), pp. 541-580.
6. Ibid, at 541.
7. Ibid.
8. Engel, C. and Kurschilgen, M. (2011) The Coevoluton of Behaviour and Normatve Expectatons:
Customary Law in the Lab, Preprints of the Max Planck Insttute for Research on Collectve Goods, Bonn
2011/32.
9. Statute of the Internatonal Court of Justce, Artcle 38(l)(b).
10. See for example, Internatonal Court of Justce, Contnental Shelf Case (Libyan Arab Jamahiriya v. Malta),
Judgment, 3 June 1985, ICJ Reports 1985, pp. 29-30, at para. 27.
11. Roberts, A. (2001) Traditonal and Modern Approaches to Customary Internatonal Law: A
Reconciliaton, The American Journal of Internatonal Law, Vol. 95, No. 4 (Oct., 2001), pp. 757-791.
12. Internatonal Court of Justce, Military and Paramilitary Actvites in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, ICJ Reports 1986.
13. Tasioulas, J. (1996) In Defence of Relatve Normatvity: Communitarian Values and the Nicaragua Case,
16 Oxford Journal of Legal Studies 85; Kirgis, F. (1987) Custom on a Sliding Scale, 81 American Journal
of Internatonal Law 146.
14. Bellinger, J. and Haynes, W. (2007) A US Government Response to the Internatonal Commitee of the
Red Cross study Customary Internatonal Humanitarian Law, Internatonal Review of the Red Cross,
Volume 89 Number 866 June 2007.
15. Henckaerts, J-M. (2007) Customary Internatonal Humanitarian Law: a Response to US Comments,
Internatonal Review of the Red Cross, Volume 89 Number 866 June 2007.
16. Eg. In Internatonal Court of Justce, The S.S. Wimbledon (1923), PCIJ Series A, No. 1, pp. 1, 28, the PCIJ
relied on two precedents only (Panama and Suez canals), to fnd that the passage of contraband of war
through internatonal canals was not a violaton of the neutrality of the state.
17. Internatonal Court of Justce, North Sea Contnental Shelf Cases, (1969) ICJ 13 at para 73.
18. Germany, Humanitarian Law in Armed Conficts Manual, DSK VV207320067, edited by The Federal
Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992.
62 61
(DIS)ADVANTAGE
IN LOWER AND HIGHER COURTS
BY TARANG IMMIDI
There is great discrepancy between higher
and lower courts in New South Wales
that extends past the most apparent
diferences such as sentencing powers or the
seriousness of maters heard. The division
marks a fundamental diference in court
operaton, public percepton and adherence
to traditonal notons of how justce is to be
done. 95.9% of criminal hearings take place in
lower court,
1
however, local courts are where
defendants are given the least equitable
chance to defend their innocence.
I. POLICE PROSECUTION
As a somewhat lay observer in the Local
Courts, it is partcularly evident to me that the
relatonship between police prosecutors and
the police ofcers testfying is signifcantly
diferent to that between the ofcers and
defence lawyers. In my observatons, ofcers
tended to be openly hostle to defence
lawyers questoning, at some points
bordering on ridiculing the questons asked.
This is in stark contrast to the elaborate,
seemingly pre-prepared responses to the
prosecutons questons.
the principle of Giannarelli v Wraith.
8

This contradicton of duty is evidently
problematc, representng a confict of
interest that gives the prosecuton an
inequitable advantage.
3. Police prosecutors are not subject to the
same code of practce of behaviour and
professional discipline as members of the
legal profession.
9
Solicitors and barristers
are bound by and face signifcant
penaltes for not adhering to their
professional code of conduct. The police
prosecutor code of conduct is ambiguous
(see (2) above), and the mechanisms of
its enforcement are signifcantly diferent,
resultng in diferent actors in the local
court system being held to varying
standards for performing similar roles.
In short, the Wood Royal Commission said
that police prosecutors face a confict of
interest between being impartal to ensure
a fair trial, and protectng and aligning with
their peers. The problem is distnct from any
confict of interest defence representaton
may face, as police prosecutors adhere to a
diferent set of rules that may not be enforced
as efectvely as those for solicitors and
barristers. It is my opinion that this problem
stll exists in local courts, or that litle has
been done to remedy it.
II. DEFENCE IN LOCAL COURTS
The positon of advantage enjoyed by police
prosecutors stands in contrast to the positon
of most defendants, partcularly those who
are self-represented. These defendants are
generally given a minimal level of guidance,
resultng in a limited grasp of court room
terminology, for example, being able to refer
to the Magistrate properly. These defendants
are however, unable, on the whole, to present
legally compelling arguments, ofen tmes
resortng to an emotonal appeal destned
to fail in a courtroom. There tends to be a
preparedness by Local Courts magistrates
In 1997, the Wood Royal Commission found
that the independence and impartality of
police prosecutors is compromised for three
main reasons:
2
1. They are answerable to their superiors
in the police chain of command.
3
This
creates a confict of interest between
the court and their peers, whom they
may be questoning. Regardless of a
police prosecutors intenton to remain
impartal, the fact that their superiors,
who may not be as familiar with the
courts system,
4
would be biased towards
protectng another police ofcer.
5
This
clouds the impartality of the prosecutor,
resultng in unjust interactons between
police ofcers and the court.
2. Police prosecutors do not have a legal
duty like solicitors and barristers do.
6

According to the police prosecutors code
of conduct, prosecutors are required to
discharge their dutes to the Court and
Police Service honestly and impartally.
7

Simultaneously, the prosecutors
course guides prosecutors to embrace
to relax the formality of court ceremonies
such as the role of the magistrate as a
referee rather than an actve partcipant,
is representatve of the contrast in purpose
of lower and higher courts.
10
Higher courts
represent an ideological practce of law and
justce, while lower courts practce summary
justce that is not real law,
11
and devoid of
traditonal due process.
12

Other defendants in the Local Court are
represented by a variety of under-paid
legal-aid lawyers
13
and ofen-inexperienced
solicitors. This is in itself a problem against
police prosecutors who have an advantage,
as discussed above. The court environment,
designed to refect traditonal courtroom
power structures,
14
does not remedy the
problem. Most defendants sit furthest of
all partcipants in the court room. Those
in the dock sit well of to the side of
proceedings, which is a partcular problem
in the event of self-represented defendants
from the dock. The other consequence of
this spatal organisaton is that audibility
is compromised.
15
Inaudibility further
compromises the positon of both self-
represented defendants and inexperienced
solicitors who may not be familiar with court
jargon, thus putng defendants at further
disadvantage in lower courts.
The position of
advantage enjoyed by
police prosecutors
stands in contrast
to the position of
most defendants,
particularly those who
are self-represented.
64
65
III. DEFENCE IN HIGHER COURTS
In higher courts, there exists a more level
playing feld between the defence and
prosecutng counsel. Director of Public
Prosecutons (DPP) and defence lawyers tend
to be equally familiar with and confdent in
addressing the court and interactng with
the judge. All legal professionals involved
in these courts interact with the court on a
regular basis, hence are equally capable of
interactng with it.
In contrast, from the perspectve of the
defendant or any lay person, stepping into a
court room is a dauntng experience, due to
the immediately perceptble nature of power
dynamics,
16
signs of which saturate the court
room, from the elevated and ornate judges
bench to the language used and the ritual
of bowing. In the idealistc percepton of
the operaton of the court room, the judge
and court ofcers hold a fair monopoly over
ceremonies
17
It is through ceremonies, ofen
archaic,
18
that power is exuded. The major
diference, to me, between lower and higher
courts is the relaxing of these ceremonies
and rules. Thus, given the disadvantage
that self-represented defendants are at in
lower courts, self-represented defendants in
higher courts are at an entrely unacceptable
disadvantage. While the incidence of such
defendants is rare, it is not unheard of,
especially in maters such as bail hearings.
Self-represented defendants in these courts
may have been given greater legal advice than
in lower courts, higher courts simply lack the
experience of dealing with such defendants to
accommodate them equitably. Fundamentally,
a self-represented defendant will require
some degree of leniency or assistance from
the judge or magistrate regarding process
and court rules.
19
This cannot ofen occur in
higher courts as empirically, such rules and
processes are more strictly enforced in higher
courts, partcularly the Supreme Court. The
relaxaton of rules and assistance from the
judge in higher courts risks the percepton
of bias, invalidatng a trial or hearing.
20

Self-represented defendants thereby result
in improper court processes, which is
partcularly problematc in higher courts.
IV. DPP PROSECUTION
Prosecutons by the DPP tend to bring the
operaton of the court closer to the ideal.
First, both prosecutors and defence lawyers
in higher courts are bound by the same
codes of practce, therefore have the same
limits placed on their conduct. Second, any
special relatonship or familiarity a public
prosecutor has, is dealt with professionally
by the court. Prosecutors already have a
close working relatonship with judges, but
are able to maintain a degree of formality
and professionalism that ensures that justce
is not only done in higher courts, but is
also seen to be done.
21
Even so, some of
the greatest miscarriages of justce have
occurred in some of the highest courts in
Australia. Mohamed Haneef was wrongly
charged and detained on advice given by
the Commonwealth DPP on the basis of
inaccurate informaton given by the Federal
Police.
22
This is indicatve of the fact that
higher courts are not perfect and stll face
problems such as prosecutorial discreton.
Higher courts might be beter for a fairer trial,
however they are hugely expensive, and not
by any means perfect.
V. CONCLUSION
The greatest diference between lower and
higher courts with regard to representaton
is the discrepancy of advantage that the
prosecuton has over defendants. In lower
courts, this arises from the advantage
police prosecutors have in additon to the
disadvantage self-represented defendants
are at. Higher courts tend to be a more
level playing feld, with most maters having
similar calibre prosecutors and defence
representatves. This is a product of the way
in which each court is conducted, a result of
the functon of each ter of the courts system
in society. As academic Doreen McBarnet
argues, higher courts refect the ideal of
the criminal justce system, and exist partly
for public consumpton, resultng in rigid
rules of process.
23
Lower courts exist to get
through the list and process as many maters
as possible in the shortest tme possible,
24

resultng in more lax court processes. The
REFERENCES
1. Kathy Mack and Sharyn Roach Anleu, Getng Through the List: Judgecraf and Legitmacy in the Lower
Courts (2007) 16 Social Legal Studies 342, 349.
2. New South Wales, Royal Commission into the New South Wales Police Service, Final Report (1997) vol 2,
297.
3. Ibid
4. Ibid 298.
5. Nicholas Cowdery, Cowdery seeks take over of police prosecutons, The Sydney Morning Herald
(Sydney, Australia), 1 May 2010, 1.
6. Royal Commission into the NSW Police Service, above n 3, 297.
7. Royal Commission into the New South Wales Police Service, above n 2, 380.
8. (1988) 165 CLR 543, 556: This duty may require the advocate to act to the disadvantage of the clients
case, even if the client instructs to the contrary.
9. Royal Commission into the NSW Police Service, above n 3, 297.
10. Doreen McBarnet, Convicton: Law, the State and the Constructon of Justce (Palgrave Macmillan, 1981)
152.
11. Ibid 153.
12. Ibid.
13. Nicholas Cowdery, Dietrich: Why Should the Prosecuton Worry? (1997) 9(2) Current Issues in Criminal
Justce 163, 167.
14. Pat Carlen, Magistrates Justce (Martn Robertson and Co, 1976) 21.
15. Ibid 23.
16. Harold Garfnkel, Conditons of successful degradaton ceremonies (1956) 61(5) American Journal of
Sociology 420, 424.
17. Ibid.
18. McBarnet, above n 10, 160.
19. Duncan Webb, The right not to have a lawyer (2007) 16 (3) Journal of Judicial Administraton 165, 175.
20. Ibid.
21. McBarnet, above n 10, 153.
22. Peter Hastngs, A Lesson for Prosecutors [2011] Bar News: Journal of the New South Wales Bar
Associaton 40, 42.
23. McBarnet, above n 10, 153.
24. Ibid.
result of these difering functons has led to
the current, inequitable situaton. Steps can
be taken to move towards a more equitable
adversarial process in lower courts, in my
opinion, by transferring responsibility for
prosecutons to the DPP and ensuring self-
represented defendants have sufcient
resources to defend themselves.
66 65
I used to think being gay was just part of
my life and now I know it means dark cells
and beatings. It is very, very difficult to be
gay in Egypt.
1
Internatonal criminal law (ICL) emerged
in response to the unimaginable scale of
barbarism commited by Nazi ofcials during
the Third Reich,
2
whereby the Nuremburg
Charter and Nuremberg trials codifed
crimes against humanity into positve ICL.
3

Despite their merits, the Nuremberg Charter
and Nuremberg trials both failed to adopt
a holistc approach to the crimes against
humanity commited by the Nazis. This was
partcularly the case as the catalogue of
victm groups recognised in the Nuremberg
Charter was too narrow, and although
homosexuals sufered group-based atacks
by the Nazis,
4
they were not recognised.
Unlike the Nuremberg Charter, which
seemingly required a discriminatory motve
HISTORY REPEATING
THE PERSECUTION OF HOMOSEXUAL MEN IN MODERN-DAY EGYPT
AND THE STRUGGLE TO RECOGNISE SEXUAL ORIENTATION AS A
GROUNDS OF PERSECUTION UNDER THE ROME STATUTE
BY MARIE ISKANDER
The purpose of this piece is to challenge this
exclusion of homosexuals from ICL, and I
argue that such a constructon is inconsistent
with the principles of transitonal justce and
fails to address the widespread culture of
impunity atached to such crimes. Although
it would be difcult to indict perpetrators
from Egypt for internatonal crimes against
humanity,
11
as Egypt is yet to ratfy the
Rome Statute,
12
this case study is relevant
to this pieces arguments, as the alleged
crimes commited against homosexual men
in Egypt are akin to those commited by
Nazi ofcials over seven decades ago. This
situaton where history is seemingly repeatng
itself demonstrates the extent to which ICL
since the Nuremberg Trials has failed to
deter crimes of such gravity, and in partcular
highlights the necessity for ICL to positvely
protect people who are persecuted on the
basis of their sexual orientaton. As many
homosexuals in a variety of countries are
ofen subjected to severe state-sanctoned
violence, persecuton and torture,
13
this piece
calls on the ICC to consider an expansive
defniton of gender when interpretng the
Rome Statute in order to deter further crimes
of persecuton against individuals on the basis
of sexual orientaton.
THE PERSECUTION OF
HOMOSEXUAL MEN IN EGYPT
AND MEMORIES OF THE PINK
TRIANGLE IN NAZI GERMANY
The Third Reich began their persecuton of
homosexual men immediately following their
rise to power, whereby the police were set
to destroy the homosexual subculture in
Germany by performing raids at exotc
events.
14
By a disturbingly similar token,
agents of the Vice Squad
15
in Egypt have
reportedly been involved in conductng mass
roundups of men suspected of homosexual
conduct
16
following raids conducted at bars
and clubs renowned for being frequented
by gay men.
17
The most signifcant raid took
to prosecute perpetrators of crimes against
humanity,
5
the Rome Statute has been
celebrated for eliminatng this requirement
in relaton to all crimes against humanity
except for the crime of persecuton.
6
This
is a step forward for ICL, as it enables the
Internatonal Criminal Court (ICC) to indict
individuals responsible for perpetratng
crimes against humanity, regardless of a
discriminatory motve.
7
However, the grounds
of persecuton under the Rome Statute
8
have
been construed in a manner which seeks
to exclude sexual orientaton, as Artcle
7(3) narrowly defnes gender in a manner
which would preclude homosexuals.
9
This
constructon of gender in the Rome Statute is
partcularly problematc as homosexuals and
transsexuals are ofen subjected to the worst
form of persecuton,
10
but under the current
interpretatons emerging from the Rome
Statute they would not be aforded protecton
against persecuton under ICL.
place in May 2001, when ffy-two men were
arrested during a police raid of a Cairo
discotheque called the Queen Boat.
18
Afer
these men were rounded up, Human Rights
Watch reported that victms were whipped,
beaten, bound and suspended in painful
positons, splashed with ice-cold water, and
burned with lit cigaretes, or more heinously
tortured with electroshock on the limbs,
genitals, or tongue.
19
In additon, guards
would sometmes encourage other prisoners
to rape suspected homosexuals.
20
Moreover, similar to the Nazi Party, who used
invasive medical procedures designed to
alter sexual orientaton,
21
men arrested for
appearing homosexual in Egypt are forcibly
subjected to anal examinatons at the
hands of the Forensic Medical Authority,
an agency of the governments Ministry of
Justce.
22
According to Human Rights Watch:
Doctors compel the
men to strip and
kneel; they massage,
dilate, and in some
cases penetrate
the prisoners anal
cavites in search of
signs that they have
been habitually
used in sodomy.
23

What is worse is that
doctors have also recently
employed new methods
involving electricity to
investgate prisoners
anuses.
24
Furthermore, akin
to the imprisonment
of homosexuals in
concentraton camps
under the Nazi regime,
where the Gestapo
habitually imprisoned
men without any
68 67
when considering the chapeau elements
of persecuton in the context of the Rome
Statute. To be prosecuted under the Statute,
the persecutory acts must have been
conducted in connecton with other crimes
against humanity referred to under the Rome
Statute or within the ICCs jurisdicton.
52
The
high threshold therefore renders persecuton
type crimes to a secondary status,
53
requiring
it to be of the same gravity or severity as
other crimes enumerated under the Statute.
54

Therefore contrary to the fears expressed
during the negotatons at Rome, not every
denial of human rights may consttute a
crime against humanity.
55
For this reason,
issues pertaining to marriage equality,
for example, would not come within the
ambit of the ICCs jurisdicton as this form
of discriminatory conduct does not amount
to persecuton as defned by the Rome
Statute. In order to consttute a crime against
humanity, acts of persecuton in their overall
consequences must ofend humanity in such
a way that they may be termed inhumane.
56

For this reason it seems rather futle that the
delegatons sought to preclude protectng
people from being persecuted on the grounds
of sexual orientaton, unless their aim was to
tacitly permit the persecuton of homosexuals
and transsexuals.
In light of Egypts persecuton of
homosexuals, it is clear that inclusion of
Artcle 7(3) has contributed to a culture
of impunity, where state actors can
systematcally persecute people on the
basis of their sexual orientaton, and be
able to escape unscathed and without being
reprimanded by ICL.
sentence: [t]he term gender does not
indicate any meaning diferent from the
above.
41
While the inclusion of gender as
a ground for persecuton has been hailed
as an achievement for internatonal law,
42

this restrictve defniton was intentonally
constructed to ensure that persecuton on
the basis of sexual orientaton was
not proscribed.
43
Interestngly, it may be noted that Egypt,
among other Arab and Catholic delegates,
played a dominant role in opposing the
inclusion of the term gender,
44
as they
feared it would be understood to include
sexual orientaton.
45
In relaton to this, one
commentator stated that they objected to
the inclusion of the term gender because
they believed that this would be a code of
homosexuals
46
and would subsequently
put them and their lifestyles on the same
legal footng as married couples.
47
As a
result, some delegates suggested that the
term sex be alternatvely adopted, as this
would confne the defniton to the biological
diferences between men and women.
48

Other delegates however argued that the
inclusion of the term gender would be a
more accurate refecton of the current state
of internatonal law, as it would capture
sociological and biological defnitons.
49

Therefore, the defniton in Artcle 7(3) was
adopted to prohibit any interpretaton of
the term gender as a social constructon
that might encompass sexual orientaton,
50

partcularly as this defniton was the only
one which the Arab States and others
were willing to agree to.
51

The defniton of gender encapsulated
in Artcle 7(3), however, appears futle
evidence that they had actually engaged
in homosexual ofences,
25
the Vice Squad
in Egypt regularly arrest and imprison men
suspected of engaging in homosexual acts,
charging them with contravening Egyptan
laws prohibitng debauchery.
26
These men
are routnely harassed, beaten and arrested
based on how they look and walk, the style
of their hair, and even the colour of their
underwear.
27
Thus such persecuton ofen
merely occurs merely because individuals
appear to act at odds with social norms in
partcular norms for expressing gender.
28
Although the politcal regime in Egypt has
changed since the Human Rights Watch
report was published in 2004, frequent media
reports have cited the ongoing existence of
persecuton against homosexuals in Egypt.
29
In
additon, as the principles of Sharia law have
been codifed in the Egyptan consttuton,
it is arguable that there is a likely chance
that persecutory practces will contnue, as
homosexuality is cited as being inconsistent
with Sharia law.
30
DEVELOPING A CASE AGAINST
EGYPTIAN OFFICIALS FOR CRIMES
AGAINST HUMANITY
As previously noted Egypt has not ratfed
the Rome Statute
31
and therefore would
not come within the ambit of the ICCs
jurisdicton, unless the United Natons
Security Council referred the mater to the
ICC Prosecutor to investgate.
32

Notwithstanding this, in order for persecuton
to be proved under the Rome Statute, it must
have been commited in connecton with any
act referred to in Artcle 7(1) or any crime
within the jurisdicton of the Court.
33
This
could have been satsfed in this case, as the
persecuton of homosexuals clearly involved
conduct such as torture,
34
rape
35
and arbitrary
deprivaton of liberty.
36
Nonetheless, while
the persecutory conduct by the Egyptan
ofcials was clearly pursued for discriminatory
reasons, because persons were targeted
for their perceived homosexual identty,
37

the conditons of persecuton as recognised
under the Rome Statute would not be proven
due to the limited grounds of persecuton
recognised under Artcle 7(1)(h). This is the
case as persecuton may only be prosecuted
under the Rome Statute if it is commited
on the basis of politcal, racial, natonal,
ethnic, cultural, religious, gender as defned
in artcle 7, paragraph 3, of the Statute, or
other grounds that are universally recognized
as impermissible under internatonal law.
38

Up untl this point, internatonal criminal
jurisprudence does not recognise persecuton
on the grounds of sexual orientaton.
39
As will
be discussed next in this piece, the narrow
defniton provided for gender is problematc
as it precludes prosecuton of perpetrators
who have persecuted homosexuals.
A CRITIQUE OF ARTICLE 7(3):
A FUTILE DEFINITION OF GENDER
The religious enclave, wrongly elevated to
statehood by an unthinking internatonal
community, was responsible for including
Artcle 7(3): the most ridiculous clause in any
internatonal treaty ever devised.
40
Artcle 7(3) of the Rome Statute defnes
gender as referring to the two sexes,
male and female, within the context of
society. In additon the defniton of
gender, Artcle 7(3) includes the following
contrary to the fears expressed during
the negotiations at Rome, not every
denial of human rights may constitute
a crime against humanity.
70 69
READING SEXUAL ORIENTATION
INTO THE ROME STATUTE AS A
GROUND OF PERSECUTION
Although some delegates were convinced
that the defniton of gender would preclude
sexual orientaton as becoming a ground of
persecuton,
57
the defniton in Artcle 7(3)
adopted language which could be interpreted
to include sexual orientaton and thereby
contribute to the progressive development
of internatonal law.
58

Firstly, sexual orientaton may be recognised
within Artcle 7(1)(h) as falling within other
grounds that are universally recognised
as impermissible under internatonal
law.
59
This ground however may not easily
accommodate for sexual orientaton on
the basis that universal recogniton is a
signifcantly high threshold.
60
Alternatvely, the inclusion of the language
within the context of society sought to
provide sufcient fexibility to the defniton
which would thereby leave it open for the
ICC to interpret the defniton of gender
based on the circumstances before it.
61
The
term gender in the context of the language
used in Artcle 7(3) may be read in a way
that suggests that individuals who do not
behave according to a prescribed gender
role
62
may be aforded protecton against
persecuton under the Rome Statute. This
approach to gender-based violence was
taken by the United Natons Human Rights
Council which highlighted that persecuton
on the grounds of gender may be driven
by a desire to punish those seen as defying
gender norms.
63
This reading would thereby
support the fnding that the crimes against
as expressed in Artcle 21(3), it would be
dubious to suggest that any ambiguites
inherent in the defniton of gender would
be resolved in favour of discriminaton,
especially in a statute establishing the highest
internatonal insttuton of justce.
69
This
is arguable on the basis that Artcle 21(3)
states that the Statute must be consistent
with internatonal human rights and that the
law must be applied without any adverse
distncton of discriminaton. Therefore,
this holistc approach to reading gender in
light of other provisions contained in the
Rome Statute would favour an inclusion of
sexual orientaton as a prohibited ground
of persecuton, rather than interpretng the
defniton of gender as being exclusive.
Therefore, these approaches demonstrate
that while the defniton of gender in
Artcle 7(3) upon frst reading appears rather
restrictve, it may be expansively read to allow
the ICC to interpret the defniton of gender
as including non-discriminaton on the basis
of sexual orientaton, thereby avoiding a
regression in the law.
70
CONCLUSION
Hatred which expresses itself in persecuton
must draw condemnaton and punishment as
a crime against humanity, otherwise hatred
wins the day.
71
Crimes against humanity, commited on the
grounds of sexual orientaton, have existed
before the birth of ICL and date back to the
atrocites commited by the Nazi Party.
72

Despite this, ICL has been slow to positvely
protect homosexuals and transsexuals,
homosexual men in Egypt satsfy the grounds
of persecuton under the Rome Statute, as
such persecutory conduct was driven by a
motvaton to re-establish gender hierarchy
in a context of shifing gender roles.
64

In additon, while the last sentence of
Artcle 7(3) appeared to be an atempt to
exclude sexual orientaton being read within
the Statutes defniton of gender, several
scholars have argued that this sentence is
superfuous.
65
This is evident because the
sentence merely refers the reader back to
the frst sentence, which as previously stated,
may be read in a way that accommodates for
sexual orientaton.
66
Moreover, while some
may have been concerned that the language
within the context of society would be
read to accommodate for cultural relatvism,
thereby precluding expansive defnitons
of gender, Kelly Askin highlights that this
language does not refer to a specifc
society but rather connotes a normatve
approach to society as a whole.
67
Therefore,
within this framework the ICC may consider
reading the defniton of gender in light
of the context of the internatonal societys
concepton of gender.
Furthermore, by adoptng a plain reading
of the Rome Statutes defniton of gender
and analysing the negotaton history, it
does not appear that sexual orientaton
was explicitly excluded from the meaning
of gender. This therefore provides further
scope for the ICC to expansively read the
prohibited grounds of discriminaton as
including sexual orientaton.
68
Finally, it may be argued that when
considering the general principles of ICL
as was evident during the negotatons at
Rome, whereby delegates failed to seize the
opportunity to defne gender in a way which
protects victms who are frequently targeted,
persecuted and tortured on the basis of
their sexual orientaton or gender identty.
Although the birth of the Rome Statute and
the Internatonal Criminal Court marked an
evoluton in internatonal law as it sought
to end impunity for mass atrocites,
73
the
tacit failure of the internatonal community
to protect homosexuals from persecuton
has contributed to an ongoing culture of
impunity. This is most evidently portrayed
by the case study detailing the modern-
day persecuton of homosexuals in Egypt,
where such crimes and persecutory conduct
appears disturbingly similar to the crimes
commited by the Nazi regime.
While the Rome Statute deserves positve
recogniton for eliminatng the discriminatory
chapeau element from the applicaton of
crimes against humanity, the restrictve
defniton of gender adopted in Artcle 7(3)
should be read expansively, reformed or
abolished for the Statute to be considered
complete. The justfcaton for this argument
is based on the facts that such an exclusive
defniton of gender is not consistent with
the principles of transitonal justce, as
it contributes to a culture of impunity
with regards to crimes commited against
individuals on the basis of their sexual
orientaton. Ultmately, it is not appropriate
for the internatonal community or the ICC
to tacitly permit such egregious crimes to
occur,
74
or to allow the horrors of history to
contnuously repeat itself.
delegates failed to seize the opportunity to define
gender in a way which protects victims who are
frequently targeted, persecuted and tortured on the
basis of their sexual orientation or gender identity.
72 71
REFERENCES
1. Scot Long, In A Time of Torture: The Assault on Justce in Egypts Crackdown on Homosexual Conduct,
(Report, Human Rights Watch, 2004) 1.
2. Geofrey Robertson, Crimes Against Humanity: The Struggle for Global Justce (Penguin Books, 3rd ed, 2006)
207.
3. Alycia T. Feindel, Reconciling Sexual Orientaton: Creatng A defniton of Genocide that includes Sexual
Orientaton (2005) 13 Michigan State Journal of Internatonal Law 197, 198.
4. David Luban, A Theory of Crimes Against Humanity (2004) 29 Yale Journal of Internatonal Law 85, 100.
5. Cameron Charles Russell, The Chapeau of Crimes Against Humanity: The Impact of the Rome Statute of the
Internatonal Criminal Court (2011-12) 8 Eyes on the ICC 25, 36.
6. Ibid 53-4.
7. Ibid.
8. Statute of the Internatonal Court of Justce art 7(1)(h) (Rome Statute).
9. Joshua H. Joseph, Gender and Internatonal Law: How the Internatonal Criminal Court can bring Justce to
Victms of Sexual Violence (2009) 18 Texas Journal of Women and the Law 61, 67-68.
10. Ibid 96-7.
11. An excepton to this would be if the United Natons Security Council referred the mater to the Prosecutor of
the Internatonal Criminal Court under Chapter VII of the United Natons Charter. See Rome Statute art 13(b).
12. Coaliton for the Internatonal Criminal Court, Global Coaliton Calls on Egypt to Move Forward on ICC
Commitment (Media Release, 23 May 2013) 1
<htp://www.iccnow.org/documents/CICC_EGYPT_PR_Final_ENG.pdf>.
13. Ryan Goodman, The Incorporaton of Internatonal Human Rights Standards into Sexual Orientaton Asylum
Claims: Cases of Involuntary Medical Interventon (1995) 105 Yale Law Journal 255, 255.
14. Rudiger Lautmann, The Pink Triangle: Persecuton of homosexual males in concentraton camps in Nazi
Germany (1981) 6(1) Journal of Homosexuality 141, 143.
15. See Long, above n 1, 2-3. This Squad was a morals police within the Ministry of Interiors natonal police
force, with divisions in each jurisdicton
16. Ibid 2.
17. Ibid 19.
18. Ibid 2.
19. Ibid.
20. Ibid.
21. Goodman, above n 14, 268.
22. Long, above n 1, 2.
23. Ibid.
24. Ibid.
25. Feindel, above n 3, 203.
26. Long, above n 1, 1-2.
27. Ibid 3.
28. Ibid 124.
29. Amnesty Internatonal, Egypt: HIV Arrests: Policing in Ignorance and Fear: Doctors Failing in their medical
responsibility (Press Release, MDE 12/009/2008, 20 May 2008)
<www.amnesty.org/en/library/info/MDE12/009/2008/en>.
30. Duncan Golestani, Getng Worse: Egypts gays fear government crackdown, NBC News (online), 23 January
2013 <htp://worldnews.nbcnews.com/_news/2013/01/23/16644770-getng-worse-egypts-gays-fear-
government-crackdown?lite>.
31. Coaliton for the Internatonal Criminal Court, above n 13.
32. Rome Statute, art 13(b).
33. Internatonal Criminal Court, ICC Elements of Crime, art 7(1)(h), element 4.
34. Rome Statute, art 7(1)(f).
35. Rome Statute, art 7(1)(g).
36. Rome Statute, art 7(1)(e).
37. Internatonal Criminal Court, ICC Elements of Crime, art 7(1)(h), element 2.
38. Rome Statute, art (7)(1)(h).
39. See Explanatory Memorandum of the (German) Code of Crimes against Internatonal Law (BT-Drucks.
14/8524) 22.
40. Robertson, above n 2, 338.
41. Rome Statute, art 7(3).
42. Cate Steains, Gender issues in Roy S. Lee (ed), The Internatonal Criminal Court: The Making of the Rome
Statute - Issues, Negotaton, Results (Kluwer Law Internatonal, 1999) 357, 372.
43. Stephanie Farrior, The Rights of Women in Internatonal Human Rights Law Textbooks: Segregaton,
Integraton or Omission? (2003) 12 Columbia Journal of Gender and Law 587, 598.
44. Joseph, above n 9, 67; Johan D. Van Der Vyver, Civil Society and the Internatonal Criminal Court (2003) 2(3)
Journal of Human Rights 425, 432.
45. Valerie Oosterveld, The Defniton of Gender in the Rome Statute of the Internatonal Criminal Court: A Step
Forward or Back for Internatonal Criminal Justce? (2005) 18 Harvard Human Rights Journal 55, 76.
46. Steains, above n 44, 372.
47. Roger S. Clark, Crimes Against Humanity and the Rome Statute of the Internatonal Criminal Court in Mauro
Polit and Giuseppe Nesi (eds.) Rome Statute of the Internatonal Criminal Court (Ashgate Publishing Limited,
2001) 75, 81.
48. Steains, above n 44, 373.
49. Ibid.
50. Joseph, above n 9, 67-8.
51. Steains, above n 44, 372.
52. Internatonal Criminal Court, ICC Elements of Crime, art 7(1)(h), element 4.
53. Robert Cryer, Prosecutng Internatonal Crimes: Selectvity and the Internatonal Criminal Law Regime
(Cambridge University Press, 2005) 260.
54. See, eg, Kupreskic et al (Judgment) 14.1.2000 [193]-[195]; Kordic et al (Judgment) 17.12.2004 [102].
55. Ibid [618].
56. Ibid [615], [622].
57. Oosterveld, above n 47, 72.
58. Steains, above n 44, 372.
59. Rome Statute, art 7, subpara 1(h), cited in Darryl Robinson, Defning Crimes Against Humanity at the Rome
Conference (1999) 93(1) American Journal of Internatonal Law 43, 54.
60. Ibid 54.
61. Steains, above n 44, 372.
62. Ibid 237.
63. United Natons Human Rights Council, Report of the United Natons High Commissioner for Human Rights on
discriminatory laws and practces and acts of violence against individuals based on their sexual orientaton and
gender identty, 19
th
sess, Agenda Items 2 and 8, A/HRC/19/41 (17 November 2011) [20].
64. Nicola Prat, The Queen Boat Case in Egypt: sexuality, natonal security and state sovereignty (2007) 33(1)
Review of Internatonal Studies 129, 137.
65. Copelon, above n 64, 237; Steains, above n 44, 372.
66. Oosterveld, above n 47, 77.
67. Kelly D. Askin, Crimes within the Jurisdicton of the Internatonal Criminal Court (1999) 10 Criminal Law
Forum 33, 48.
68. Oosterveld, above n 47, 82.
69. Copelon, above n 64, 237.
70. Oosterveld, above n 47, 84.
71. Judge Rosalie Abella quoted in Copelon, above n 64, 237.
72. See: Tadic (Appeal Judgment) 15.7.1999 [285].
73. Juan E. Mendez, Recent Trends in Transitonal Justce (Paper presented at the Marek Nowicki Lecture,
Helsinki Foundaton for Human Rights, Warsaw, 10 November 2010).
74. Pam Spees, Womens advocacy in the Creaton of the Internatonal Criminal Court: Changing the Landscapes
of Justce and Power (2003) 28(4) Signs 1233, 1244-5.
74
WHO HOLDS THE SCALES
OF JUSTICE IN MATTERS OF
PUBLIC INTEREST?
BY CHANTAL TANNER
Since its incepton, the Southern African
Development Community (SADC) Tribunal has
been fraught with controversies. Established
as a court of supranatonal jurisprudence,
the Tribunals mandate was envisioned to
hear disputes arising between member
states, with an eye towards protectng human
rights and monitoring economic integraton.
The establishment of the SADC Tribunal
was encouraged by the European Unions
experience of dispute setlement insttutons
as a means of fostering regional integraton.
1

But for Africa this was not to be the case.
In August of 2010, afer hearing its second
ever case, a Summit of SADC Heads of State
suspended the Tribunal. The suspension
came in response to the Courts fndings in
the mater of Mike Campbell (Ptv) Ltd and
Others v The Republic of Zimbabwe.
2
The
case challenged the violent expropriaton
of agricultural lands, as ordered by the
Mugabe government, which efectvely
consttuted a race-based discriminaton
against White Zimbabwean citzens.
3
The
claimant came before the Tribunal arguing
that such discriminaton is illegal under both
Artcle 6 of the SADC Treaty and the African
Union Charter. The defendant refuted
this claim, arguing that the acquisiton of
farming propertes was a remedy to residual
colonial imbalances.
When the SADC Tribunal found in favour of
Mike Campbell and the adjoining farmers,
Zimbabwe immediately withdrew from
the Tribunal and mounted a challenge
against its authority. What followed was
an announcement that the Tribunals role,
functons and terms of reference would be
reviewed.
4
Essentally, the functonality of the
Court was disbanded for an indefnite period.
Since the Tribunals suspension, the demise
of the Court has been linked to the cases
that it heard. By trialling highly contentous
public interest litgaton, so immediately
afer its formaton, the Tribunal was thrust
into a highly politcal context. Nicole Fritz,
founder of the Southern African Litgaton
Centre, believes that the Tribunal was
placing its legitmacy in jeopardy by hearing
such a controversial case at a tme so soon
afer its incepton. Fritz argues that the
Tribunals early focus should have been
on fostering its credibility and stability, by
residing over maters that werent inherently
controversial and politcal fuelled. This
would have encouraged States to accept the
Tribunals authority, making its suspension
far more problematc.
5

Fritzs propositon about the SADC Tribunals
collapse brings to light key questons about
the noton of public interest litgaton (PIL).
It forces us to consider conceptual issues
about who the public are and whether
litgants are constructng viable interests for
those people that they seek to represent.
Indeed, as Fritz has argued in the case of the
SADC Tribunal, an inaccurate assessment of
the appropriate mater or forum for PIL can
lead to an outcome that is not refectve of
any publics interest.
WHO ARE THE PUBLIC?
Two main themes emerge in relaton to the
queston of who consttutes the public:
the people and the unrepresented.
A common defniton of PIL is as a
representaton of the collectve interest of
groups of people. According to Edwin Rekosh,
founder of the PILnet- the Global Network
for Public Interest Law, the term PIL is not
intended to describe a partcular feld of law.
Rather, it is used to connote the category of
people in which lawyers are representng.
6

Litgatng for the people is a practce not
concerned with a traditonal model of
lawyering, which focuses on representng the
interests of a single plaintf assertng their
individual legal rights. Rather, representng
the people usually means that a mater is
not about a partcular plaintfs private
rights, instead it is literally about an interest
of the publics. The essental idea is that PIL
is required when rights are threatened on
mass.
7
Therefore, PIL is defning the concerns
of the public as the collectve interests of
groups of people.
Another descripton of PIL is to represent
the unrepresented.
8
Drawing on such a
defniton it is inferred that the public are
the unrepresented. This concepton of the
public is underpinned by the noton that
everyone is enttled to equal access to
justce. For the rule of law to be achieved,
society must be governed by a system in
which the unrepresented populaton has
access to mechanisms of justce. PIL is thus
underpinned by the concept of giving legal
assistance to the indigent. This is ratonalised
as an interest of society at large as it served to
ensure that the rights of marginalised group
are protected.
9

representing the people
usually means that a
matter is not about a
particular plaintiffs
private rights, instead
it is literally about an
interest of the publics.
WHAT CONSTITUTES THE
PUBLICS INTERESTS?
Indeed, the mere placement of an issue
into the public realm can be enough to
categorise it as being of public interest.
This is why some legal scholars argue that
the publics interest is an inescapably
political concept which:
76 75
directly engages with postmodernist
indeterminacy of law and stepping
into the politcal arena... The public
interest is a concept used in a number
of intersectng areas of public life. Public
interest usually denotes the placement
of an issue, interest or informaton in the
public realm.
10
Today, the feld of PIL has come to be
understood as encompassing a wide
range of objectves such as civil rights and
libertes, consumer rights and environmental
protecton. However, traditonally the publics
interest was conceived as an ethical fght for
the protecton of the litle guy. This noton
has been understood to mean counteractng
the power leveraged by economic interests.
The noton of the common good is another
legitmatng factor discussed in determining
what consttutes a public interest. An issue
that is perceived to be for the common
good raises broader public concern, by
surpassing the interest of the individual in
order to encompass a more substantve
aspect of the interest at stake. This noton
is evidenced in the practce of the Public
Interest Law Clearing House in Victoria and
New South Wales, which determine whether
a mater consttutes a public interest by using
the criteria of whether an issue requires
addressing pro bono publico or for the
common good.
WHO CONSTRUCTS THE
PUBLICS INTERESTS?
The gatekeepers of public interest are those
groups constructng the issues that are on
the agenda within the public sphere. An
explanaton of those who are involved in the
constructon of the public interest is termed
civil society.
Philosopher Jurgen Habermas states that:
Civil society is composed of those
more or less spontaneously emergent
associatons, organizatons, and
movements that, atuned to how
societal problems resonate in the
private life spheres, distll and transmit
such reactons in amplifed form to the
public sphere. The core of civil society
comprises a network of associatons
that insttutonalises problem-solving
discourses of general interest inside the
framework of organized public spheres.
11
Through these processes, described as civil
society, it is hypothesised that all of society
is enabled to participate in defining what is
(and what is not) determined to be a matter
of public interest. If civil society is able to
work effectively then the public interests
is determined as a result of competing
values and opinions. As a result of these
processes, the concern is not so much with
what the public interest is, rather it is an
issue of who the participates are active in
these defining processes.
Today, the field of PIL has come to be understood
as encompassing a wide range of objectives such
as civil rights and liberties, consumer rights and
environmental protection. However, traditionally
the publics interest was conceived as an ethical
fight for the protection of the little guy.
THE VIABLITY OF THE
PUBLICS INTERESTS
Afer considering these defnitonal
conundrums, the queston arises as to
whether these gatekeepers of public interest
are accurately assessing the needs of the
public and whether there are appropriate
ethical boundaries in place around what
consttutes a mater of public interest.
At its core, the concept of a viable public
interest requires an investment in the noton
that we must be actvely changing injustce in
the legal system. However, as was exemplifed
with the collapse of the SADC Tribunal,
there are inherent complexites inbuilt in
challenging the law based on the premise of
a public interest. In some contexts, PIL cases
threaten to destabilise broader systemic
factors. Such destabliaton is generally not
within the publics best interest.
In South Africa, the Constitutional Court
has now set out criteria for what is defined
as a viable matter of public interest. In
the case of Lawyers for Human Rights
and Other v Minister of Home Affairs and
others [2004], Justice Yacoob affirmed
thefollowing approach:
that an enquiry would examine whether
the applicaton involves a live, rather
than abstract issue; the nature of the
infringed right and the consequences
of the infringement; relief sought and
whether it would be of general and
prospectve applicaton; the range of
persons who may be afected by a court
order, their vulnerability and whether
they had opportunity to present evidence
and argument to the Court; and whether
there is an alternatve, reasonable and
efectve manner in which the challenge
could be brought.
12
The Courts of Australia have presented a
less defnitve construct of what consttutes
a viable legal mater in the publics interest.
Nonetheless, there has been some key
commentary on the issue.
13
In the case of
Tobacco Control Coaliton v Philiph Morris
(Australia) Ltd [2000]
14
Justce Wilcox
emphasised that even when there is an
issue of public interest at stake, the broader
consequences of litgaton must be evaluated
beyond simply the good intentons of the
litgant. Justce Wilcoxs line of argument
was further extended upon in an Australian
Law Reform Commission conference enttled
Managing Justce.
At this conference Former Chief Justce of
the Australian High Court, The Honourable
Murray Gleeson noted that:
If we are setng ourselves the objectve
of making the process of civil litgaton
available to a substantally wider
group of people ... then we need some
understanding of how the system would
cope if such wider availability were
achieved. If we have no plan for this, then
all we are doing is creatng greater access
to an increasingly inefcient system.
15
These systemic and societal limitatons
upon what qualifes as a viable mater for
PIL are value judgments. Such judgments
are intricately embedded within the context
of the partcular litgaton. There can be no
single fundamental identty for the publics
even when there is
an issue of public
interest at stake, the
broader consequences
of litigation must be
evaluated beyond simply
the good intentions of
the litigant.
78 77
80 79
interest. Rather, it is dependent upon a
societys philosophical and cultural constructs
of justce and the politys responsibility for the
individual. Hence, in certain environments,
the context surrounding a case may diminish
its utlity in serving the publics interest.
CONCLUSION
In the case of the SADC Tribunal, afer
an elongated review process the Courts
jurisdicton has now been reduced to the
adjudicaton of disputes between member
states. As such, individuals no longer have
a mechanism to bring cases against their
governments before the Tribunal. This
alteraton of the Tribunals jurisdicton
efectvely leaves it as a hollowed out
instrument in relaton to the protecton of
human rights and public interest.
The collapse of the SADC Tribunal is an
illustraton of the broader concerns at play
when raising maters of PIL. It exemplifes
that, with no defnitvely measureable answer
to what consttutes public interest, the term
can merely be used in an aspiratonal sense.
The meaning of public interest is adjustable
to serve the intent of the user. Therefore, the
noton of a viable mater of public interest is
inherently unstable and bound to change over
tme and across politcal borders.
REFERENCES
1. Oliver C. Ruppel & Francois X. Bangamwabo, The SADC Tribunal: a legal analysis of its mandate & role in
regional integraton, Chapter 8, Monitoring Regional Integraton in Southern Africa Yearbook 2008.
2. SADC (T) Case No. 02/2007.
3. For further reading, see Mike Campbell Obituary, The Economist, 20 April 2011.
4. Nicole Fritz, SADC Tribunal: Will regional leaders support it or sabotage it?, OSISA,
htp://www.osisa.org/sites/default/fles/sup_fles/SADC%20Tribunal.pdf
5. South African Foreign Policy Initatve, Open Society Foundaton for South Africa, The SADC Tribunal:
removing the scales of justce, 1 March 2013, Pretoria South Africa, Conference Summary
6. Edwin Rekosh, Who defnes the public interest? OF SUR INTERNTATIONAL JOURNAL OF HUMAN RIGHTS,
No 2, 2005, pg 70.
7. Paula OBrien, Changing Public Interest Law OF ALTERNATIVE LAW JOURNAL, Vol 36, No 2, 2011, pg 82.
8. Jeremy Rabkin, Public Interest Law: Is it law in the Public Interest? OF HARVARD JOURNAL OF LAW AND
PUBLIC POLICY, Vol 8, 1985, pg342.
9. Penny Martn, Defning and Redefning the concept of practcing in the public interest OF ALTERNATIVE
LAW JOURNAL, Vol 28, No 1, February 2003, pg 4.
10. Penny Martn, supra notes 5, pg 4.
11. Edwin Rekosh, supra note 1, pg 73.
12. 12 ZACC at para 16.
13. Andrea Durbach, Defning Pro Bono- Challenging Defnitons, For the Public Good: The First Natonal Pro
Bono Conference, Canberra, 4-5 August 2000, pg 1, available at
htp://www.piac.asn.au/sites/default/fles/publicatons/extras/DefningProBono.pdf (last visited 23 Jan).
14. FCA 1004.
15. Andrea Durbach, Defning Pro Bono- Challenging Defnitons, For the Public Good: The First Natonal Pro
Bono Conference, Canberra, 4-5 August 2000, pg 1, available at
htp://www.piac.asn.au/sites/default/fles/publicatons/extras/DefningProBono.pdf (last visited 23 Jan).
CREATING VALUE THROUGH
A MUTUALLY BENEFICIAL
RELATIONSHIP
BY SHARANYA SRIKANTH
Following the implementaton of the key
recommendatons made by the Expert Panel
on Asylum Seekers on August 13 2012, it has
been made apparent that such preventatve
measures needed to be taken in order
to combat the ofen fatal consequences
associated with asylum seekers risking their
lives on dangerous boat journeys to Australia.
These vulnerable persons come to developed
natons like Australia based on the enormous
and unfounded promises indoctrinated into
them by sophistcated networks of human
trafckers. There is no denying the fact
that such drastc and stringent measures
needed to be taken in order to send a
clear message to the internatonal refugee
community that there are no advantages
given to asylum seekers in engaging with
people smugglers. While the aforementoned
laws were necessary in order to tackle the
pertnent global issue of human trafcking,
such amendments alone are not sufcient in
targetng this vicious cycle that has cost some
of the most vulnerable members of war-torn
regions, partcularly Sri Lankan Tamils that
account for a large porton of this fgure, their
livelihoods and even lives.
The cost of charter fights that transport
asylum seekers to Nauru and overcrowded
detenton centres in Australia is now costng
taxpayers an average of at least $6.1 million
a month, which includes the costs of the
new policy of returning these boat people to
Sri Lanka. On average, ofshore processing
costs approximately $1 million per asylum
seeker annually, with almost $400 million
being expended on government contracts.
Ofcial tender notces from the Department
of Immigraton reveal a total of 57 tenders for
special air charter services have been issued
at a cost of $36.7 million for the six months
to February 15, 2013. One tender marked to
various locatons was issued at a cost of $15
million for 23 days of service and is believed
to include the transfer of asylum seekers to
Nauru and the return of failed Sri Lankan
asylum seekers. While these exuberant costs
80 79
may be necessary, the queston that needs to
be asked is how this use of resources can be
made more valuable to both Australia and the
vulnerable asylum seekers. This artcle seeks
to provide recommendatons in answering
this pertnent queston.
Volunteering at the Organisaton for Ealam
Refugee Rehabilitaton (OfERR) in Chennai,
India over the Summer of 2012-13, has
led me to the belief that Australia has
the potental to become an internatonal
fgurehead in dealing most efectvely with
people smugglers. This can be achieved
through the combinaton of various mutually
benefcial initatves as well as the inclusion
of enabling laws in the future regarding
Australias stance on refugees and asylum
seekers to allow for freer movement
between the war-ravaged region of Sri
Lanka and Australia. Australia, having one
of the largest Sri Lankan Tamil populatons
in the world outside of the island naton
and presentng itself as a global leader
in pressuring the Sri Lankan government
in regards to war crimes allegatons, is
indeed capable of adding further value to
its relatonship with the island naton. Such
value can be found through going beyond
the boundaries of the one-dimensional
ofshore processing policy currently in place,
and instead, taking a more mult-faceted
approach. I believe that this can be facilitated
through the Australian Government assistng
NGOs like OfERR in targetng the issue of
human trafcking at the root by creatng
greater awareness within the camps through
people-to-people transparency.
It is a staggering fgure that approximately
one third of the people who atempted to
enter Australia by boat from January to
October in 2012 were Sri Lankan Tamils.
Nevertheless, it is not my intenton to
dwell on statstcs, but rather to share my
recommendatons based on my frst hand
experiences with Sri Lankan Tamil refugees.
As a second year law student currently
studying at the University of New South
Wales, member of the Sri Lankan Tamil
Diasporas and Australian citzen, I strongly
believe that the Australian Government has
the fnancial resources and humanitarian
capacity to follow-up Australias new stance
regarding ofshore processing. As a naton, we
can be instrumental in remedying the concern
of human trafcking by playing a greater
humanitarian and altruistc role through
assistng these asylum seekers in a valuable
return to their homelands. This can thereby
be achieved through increasing the natons
esteem as a forerunner in asylum seeker
policy innovaton and role model to fellow
developed natons through their facilitaton
of humanitarian initatves, thus assistng Sri
Lankan Tamil refugees and asylum seekers in
their return to the motherland.
I. ENDING THE CYCLE OF
HUMAN TRAFFICKING AT A
GRASS ROOTS LEVEL
It has now been established that it is only
through the creaton of a safe environment
back on the island that word can be spread
about the dangers of human trafcking,
where more ofen than not, the most
vulnerable, namely Sri Lankan Tamil asylum
IT IS only through the creation of a safe
environment back on the island that word can be
spread about the dangers of human trafficking
seekers in desperate situatons, are lured
onto boats under false grounds. The only way
to remedy such a situaton is through word
of mouth and changing these vulnerable
persons percepton of human trafcking
in order to prevent them from engaging in
actvity that is endangering their lives, the
lives of fellow family members and even their
livelihoods as they ofen drain their entre
life savings. However much NGOs and state
government ofcials (namely those in Tamil
Nadu) inform refugees of the dangers of
human trafcking afer frst-hand interacton
with numerous refugees within the camps, it
is my belief that nothing would resonate with
them more than the stories of fellow asylum
seekers who have experienced frsthand the
dangerous boat journeys and the lifetme
of indebtedness they will endure in their
atempt to repay these human trafckers.
This phase of the process looks at a more
permanent soluton of ending the cycle of
human trafcking through facilitatng more
substantal dialogue between asylum seekers
and potental asylum seekers, partcularly
regarding the ofshore processing of asylum
seekers on Nauru. Furthermore, it is proposed
that substantal incentves need to be
provided by the government as a method of
encouraging people to come forward with
informaton about trafckers. This informaton
will prove vital to the Australian Federal Police
and will subsequently allow for the infltraton
of these complex networks, eradicatng the
problem at the root.
Afer a series of conferences that I partook
in while volunteering, it was concluded that
the challenge of human trafcking must be
tackled through sustained awareness building
programs among the vulnerable persons
within the refugee community. Likewise, it
also applies to persons on the island who
have fallen victm to human trafckers
previously. The actvity that is proposed is to
sustain regular discussions at the camp level
it is proposed that
substantial incentives
need to be provided
by the government
as a method of
encouraging people
to come forward with
information about
traffickers.
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regarding the dangers and unacceptability
of human trafcking. This would therefore
enhance the impact of the process because
the efort against human trafcking would be
targeted at the grass root level, in additon
to a governmental or organisatonal level. It
is this discussion that will ultmately assist
the Australian government in protectng our
shores and alleviatng this perpetual cycle.
The vulnerable persons in the refugee
community is threefold:
1. Family members of persons who have
already got across to Australia.
2. Persons who have atempted to go to
Australia, however failed in their eforts.
These persons must then bring in fve
recruits if they are to be included in the
next batch.
3. Persons who are not sure as to what they
should do about preparatons for return
to the island.
This noton of informaton sharing will
also create awareness of the noble cause
undertaken by Australia regarding the
governments consistent eforts in protectng
those persons whose lives are in danger.
NGOs and government bodies must
consequently play an instrumental role in
informing refugees, who are considering
boarding a boat to Australia, illuminatng the
noton that in doing so, they are harming this
noble cause and tarnishing the respected
name of Sri Lankan ex-patriots residing in
Australia. Australia has been extremely
generous in accommodatng one of the
worlds largest Sri Lanka Tamil ex-patriot
populatons and such a noton must be shared
within refugee camps to ensure that such a
relatonship should not be abused or taken
for granted.
The most efectve antdote to human
trafcking has been the sharing of
informaton by those who have atempted to
reach Australia and decided to return to Sri
Lanka as they were convinced that they were
cheated, hence on a person-to-person basis.
This informaton is then to be shared at the
discussions that take place at camp levels.
This informaton is also made available to the
government functonaries who are pertnent
in the process of putng a stop to human
trafcking. A further antdote to the human
trafcking eforts is the discussions among
refugees at the camp level as to what would
facilitate their return to Sri Lanka. The positve
approach of well informed refugees preparing
for return, strengthened by the success
stories of persons who have returned to the
island, have great potental in saving people
from being cheated into atemptng to travel
illegally to foreign countries like Australia.
II. RESTORATION OF LIVELIHOOD
AND HOMELAND THROUGH THE
PROVISION OF SEED MONEY
The staggering fgures associated with
transportng refugees back to their
homelands is likely to increase in the future.
Nevertheless, it is not my intenton to
recommend a change in legislaton. Rather
it is proposed that through the creaton of
It is clearly evident that there is substantial need for
human capital on the island and these people could become
immensely valuable if they were equipped with the correct
resources that Australia could easily provide.
a more value-laden relatonship between
Australia and Sri Lanka, the economic costs
associated with transportng asylum seekers
both to Nauru and back to their homelands
can be extended to end the cycle of human
trafcking. In providing Sri Lankan returnees
with seed money, temporary housing and
greater security for Tamils in the North and
East provinces of Sri Lanka, the Australian
government would in turn, be able to play a
pivotal role in boostng entrepreneurship and
economic prosperity among returnees.
It is my strong belief that this would be a
monumental step in putng an end to human
trafcking, providing an indicaton to these
vulnerable persons that their homeland
does indeed provide them with substantal
opportunites for livelihood, in stark contrast
to the high risk noton of boarding a boat to
Australia. Through OfERRs contnuous work
in the camps and the open forum which they
have created with close to 70 000 refugees
in Tamil Nadu, India, it is evident that the
refugee community is largely ill-informed
of the situaton back in their homeland and
it is this lack of awareness that has caused
many of them to seek refuge elsewhere. The
creaton of more positve stories regarding
those who have returned to the homeland
will encourage others to endure the same
process and further dissuade them from
engaging with people smugglers. It is here
that the Australia Government has the
opportunity to intervene and add value to
the process of returning asylum seekers
to their homelands in adoptng a greater
humanitarian role, thus assistng those
most vulnerable. This could possibly be
exercised through greater involvement of
the Australian High Commission in the North
and Eastern provinces in Sri Lanka for the
purposes of making the Tamil people feel
safe in their homeland, previously dictated by
government forces.
Such a noton can only be achieved through
greater understanding and awareness on the
part of the Australian Government regarding
the needs and scope of the rebuilding
process that needs to take place in war-
ravaged regions, specifcally Tamil dominated
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areas. There needs to be the contnuaton of
sustained development of projects such as:
the rehabilitaton of Kankesanthurai Harbour,
the rehabilitaton of Palaly Airport, the repair
and reconstructon of hospitals and schools,
setng up of Vocatonal Training Centres, the
constructon of the Cultural Centre in Jafna
and fnally, the restoraton of railway lines
and of the Duraiappah stadium in Jafna. It is
clearly evident that there is substantal need
for human capital on the island and these
people could become immensely valuable
if they were equipped with the correct
resources that Australia could easily provide.
Furthermore, the inclusion of such prominent
infrastructure in these Tamil dominated
regions of Sri Lanka will provide the Sri Lankan
Tamil populaton with a sense of confdence
in returning to their homeland and provide
a much needed boost to the declining
businesses in these regions.
III. UTILISATION OF HUMAN
CAPITAL THROUGH PROVISION
OF TEMPORARY JOBS FOR
PURPOSE OF SKILL BUILDING
In accordance with the work conducted
by OfERR, I would propose the provision
of temporary working visas for asylum
seekers in Australia in order to improve
employability and confdence levels of
these vulnerable persons when they
eventually return to Sri Lanka. In order
for this to become a viable opton, the
communicaton and transportaton channels
between Australia and Sri Lanka need
to become signifcantly more fexible.
Australia would undoubtedly beneft from
the cheap labour intensive positons that
these Sri Lankan workers could fll. This would
therefore provide the Australian Government
with a much more economically benefcial
strategy, whereby the government would
not have to worry about costs associated
with permanent residency and eventual
citzenship, but rather would provide
temporary working visa. Similar initatves
have proven highly efectve in neighboring
natons of Singapore and Malaysia, who have
built a strong working relatonship with the
small island naton, where individuals travel
to foreign countries on fxed contracts. This
would become a clear example of a mutually
benefcial relatonship. Additonally, the
aforementoned strategy would also allow
for the restoraton of the Tamil populaton in
Sri Lanka.
By increasing refugee intake and moving the
Tamil populaton elsewhere in the world, we
are simply avoiding the domestc problem
back at home, more specifcally, one that is
becoming more and more pertnent as Tamils
contnue to feel vulnerable in their homeland.
In order to combat this issue, we can use
the Australian Government to assist the Sri
Lankan Tamil populaton with temporary jobs,
but also to ease them back into their life on
the island and remove the label of victm.
In taking on a humanitarian role in assistng
asylum seekers and in adding greater value to
the process of eradicatng human trafcking,
we propose the inclusion of vocatonal
training and educaton that the Australian
Government can provide to those detained.
Once they have made the journey home, the skills, which
they have obtained through temporary employment in
Australia, increase their employability in their homeland.
We believe that this will prove to be highly
efectve as these vulnerable persons become
no real burden to the Australian people, while
simultaneously equipping them with the skills
for a successful return to their homeland.
Once they have made the journey home,
the skills, which they have obtained through
temporary employment in Australia, increase
their employability in their homeland. We
would consequently urge the government
to include asylum seekers in more initatves
such as: the Australian Homestay Network,
Community Placement Network, Homestay
Helping Hand and Community Placement
Network Assistance Trust, whereby asylum
seekers are given the opportunity to take on
labour intensive tasks that do not necessarily
require a niche skillset. The provision of
jobs to these vulnerable persons can also be
extended to other manual labour jobs such as
those in the agriculture and farming sectors.
Furthermore, through my personal
experiences of working with refugees through
the educatonal and womens empowerment
sectors at OfERR, it became apparent to
me that however simple it may seem, it
was the human contact and personalised
informaton sharing that proved the most
efectve in establishing awareness about
partcular issues. Through atending a
communicaton and leadership workshop
for tertary students organised for Trichy
region refugees in Tamil Nadu, I was able to
witness frst hand the intellectual brilliance
of refugee students, many of who came from
extraordinary familial circumstances. Upon
learning that I was visitng from Australia,
through my interactons with the students,
I became aware that many were curious
about the opportunites ofered to refugees
here in Australia. While the lives of these
refugees were clearly not in danger, it seemed
understandable that they would be curious
as to the opportunites presented by the
developed world. I believe that the potental
presented by these refugees, both skilled
and unskilled, could prove to be a great asset
to the Australian workforce and would also
serve to reiterate Australias commitment to
assistng refugees and asylum seekers alike in
making a meaningful return to Sri Lanka.
IV. CONCLUSION
Over the next four years, Australias ofshore
processing units on Nauru and Manus Island
are expected to cost taxpayers $2.3 billion.
This is a comparatvely exorbitant amount
given the 2013 UNHCR global budget is
slightly more at $3.7 billion, which includes
funding for war-ravaged regions like Syria,
Mali and Afghanistan. While some may argue
that this fgure was inevitable and such a
stringent policy was the only viable opton,
greater value needs to be added to this
process in order to end the deathly cycle of
human trafcking.
Through my frst hand experiences of working
with OfERR regarding the protecton and
welfare of Sri Lankan Tamil asylum seekers
and refugees, it has become apparent
that a lack of awareness, informaton and
miscommunicaton is what has facilitated the
booming human trafcking industry amongst
refugees. Simultaneously, given the labour
capacity possessed by these vulnerable
persons and the lack of security for refugees
and asylum seekers in Sri Lanka, Australia
has the opportunity to play a much greater
humanitarian role in returning these refugees
back to their homeland. Given the mutually
benefcial aforementoned initatves, the
Australian Government has the potental
to add greater value to their pre-existng
ofshore processing policy, concurrently
assistng these vulnerable persons in making a
meaningful return to Sri Lanka and ending the
vicious cycle of human trafcking.
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