POWERPOINT ONE

Immanuel Kant: "it is only a legitimate government that guarantees our natural right to freedom, and from this
freedom we derive our rights."
Can be assumed Kant looks at the development, creation & implementation of rights as PRIMARILY DEPENDENT
on the state and HOW the government within the state functions. (IE: how the people create and enforce this.)
Kant stresses that a society can ONLY FUNCTION POLITICALLY IN RELATION TO THE STATE (i.e can be
maintained or governed) if fundamental rights, laws and entitlements are given and enhanced by the state. (I.E: the
people depend upon the government for their rights, e.t.c; we need our laws to lay out precisely what we're capable
of doing or entitled to do -- only basically dependent upon .
Kant says these "righteous laws" are founded upon 3 rational principles.
1) The liberty of every member of the society as a man. (does this necessarily mean they're entitled to the same
rights as women?)
2) The equality of every member of the society with every other, as a subject. (i.e; people are basically equal.)
3) The independence of every member of the Commonwealth as a citizen. (i.e; no-one has some sort of claim on
them from somewhere else.)
Moral philosophy of Immanuel Kant: "Act so that you treat humanity, whether in your own person or in that of
another, always as an end and never as a means only."
Kant -- "the seat of universal laws in national respect for intrinsic human worthiness, which he simplified to simply
being dignity. Recognises the "inherent dignity of all members of the human family" and affirms faith in the "dignity
and worth of the human person" which needs protection because "securing the four freedoms is the highest
international aspiration and because of the empirical evidence that violating human rights conduces to war and
barbarism."'
Origins of Nature Laws:
Critical backlash -- Jeremy Bentham says that "natural lights are merely nonsense upon stilts", and that we ought to
"make laws with respect to hedonism". (Which is an odd way to contextualise it, but a way to estimate the moral
status of any actio, based upon; (i) the greatest happiness principle, (ii) universal egoism and (iii) the artificial
identification of ones interests with those of others.

Or ie: "what is morally obligatory is that which produces the greatest amount of happiness for the greatest number of people,
happiness being determined by reference to the presence of pleasure and the absence of pain."

On this level, the French Revolution was attacked. (http://www.iep.utm.edu/bentham/#H4)

IMMANUEL KANT is the one credited with "laying the groundwork for the modern understanding of human rights" -sole "incontrovertible right" was that to freedom. There are four other freedoms he claimed we had to defend; but "intrinsic
human worthiness" is what must be defended/protected first and foremost, even despite our natural avarices such as like
servility, e.t.c

Other disputes; Hannah Arendt -- the only fundamental right 'exists within the political community itself" -- which
makes sense, as without laws we can't expect to govern ourselves.

WORLD WARS & THE EVOLUTION OF HUMAN RIGHTS

FURTHER UNDERSTANDING OF IMMANUEL KANT:

CONCEPT OF HUMAN RIGHTS:
GENOCIDE -- "usage & currency in international law". Currently in legal debates -- there are different types of
genocide, too. Argue that the definition should be broader. Various types;

Definition; "A DOMINANT GROUP WITHIN A GIVEN SOCIETY IS TO SOME DEGREE SEEKING TO MAKE
DISTINCTION BETWEEN ITSELF AND IT'S TARGET GROUP WHICH CAN BECOME INSTITUTIONALISED IN THE
LEGAL SYSTEM -- OFTEN UT FORWARD BY REFERRING TO SOME MYTH OF PURITY". 1948 UN CONVENTION
ON GENOCIDE, ARTICLE 2
FEELS THE NEED TO ELIMINATE A RIVALRY/ENEMY OR PERCEIVED INCONSISTENCY; DOMINANT GROUP
WANTS TO EXERT CONTROL & THEN "CLEANSE" OR ELIMINATE WHAT MIGHT BE INCONSISTENT IN
NATIONAL/RACIAL FRAMEWORK. E.G 1915-1920 THE OTTOMAN STATE PROCEEDED TO ETHNIC CLEANSE
CERTAIN GREEKS & ARMENIANS. (OR ENEMY GROUP; NEED TO ELIMINATE WHAT MIGHT BE DEEMED AN
ANOMALY/INCONSISTENCY IN THE FRAMEWORK) -- A MYTHOLOGY OF PURITY THAT EXISTS HERE.
SUPREME IDENTITY/MYTHOLOGY TO PUNISH/EXTERMINATE PARTICULAR GROUPS. OFTEN
INSTITUTIONALISED; NOT A "CASUAL KILLING". AS SOON AS IT BECOMES INSTUTIONALISED, THEN THAT
MIGHT BECOME GENOCIDE. "TENDS TO HAVE AN INSTITUTIONALISED STRUCTURE".
OFTEN INSTITUTIONALISED & PART OF STATE POLICY: IT'S A MINDSET, IT'S NORMALISED AS A
STRUCTURE, LEGALISED IN SOME WAYS -- e.g, Holocaust, laws passed to exclude Jews. SYSTEMATIC AND
DELIBERATE, HENCE WHY IT'S BECOME A NORM.
What acts are criminalised?
Rwanda: nearly 800, 000 beings died in the 1994 genocide of the slaughter of the tutsi by the hutus. Followed a
plane crash wherein the Rwandan Prime Minister was gunned down; later on, the Arusha Accords which had
settled a three-year civil war in 1993, which were supported by moderate Hutus were gunned down. (I.E; the
moderate Hutus were gunned down.) The presidential guard/candidates that attempted to calm others, following the
three year long Rwandan Civil War (1990-1993) failed; genocide began to happen. (between RGF v.s RPF)
People can be afraid to intervene as it's a double edged sword; CRIMINALISATION OF GENOCIDE has meant that
states show reluctance to intervene/efforts to intervene/cause a cessation (think Rwanda; not seen to be "of
sufficient interest/value" to cause the "prevention of the violence" to warrant the expense/resources and risk losing
more casualties and it was well advanced in the killing) -- ALSO didn't want to use the word genocide in 1994; if
they'd had a convention for it, they couldn't say it & then do nothing about it -- e.g, if you intervene then that also
might effect you
ALSO w Rwanda; publicity gave an outcry that "intervention would be misunderstood".
INTERNATIONAL LAW DIDN'T HAVE MANY SUPPORT - POSITIVISTS SUPPORT INTERNATIONAL MORALITY,
BUT LITTLE ELSE.
GENOCIDE might be defined as "a dominant group within a given society is to some degree seeking to make
distinction between itself and it's target group, which can become institutionalised in the legal system -- e,g
put forward by referring to some meth of purity, and therefore can begin to engage in "population cleansing".
May also be seen as a "systematic attempt to wipe out a particular nation" -- or a denial of the right of
existence of other human groups."
1948 -- UN General Assembly voted unanimously to create the UN Convention on the Prevention & Punishment on
the Crime of Genocide (post World War 2). CERTAIN ACTS CRIMINALISED COMMITTED WITH THE INTENT TO
DESTROY ETHNIC/RACIAL/RELIGIOUS GROUPS.
Article 2 of the Convention on the Provention & Punishment of the Crime talks about the deliberate +
systematic destruction in whole or in part of an ethnic/racial/religious/national group.
When ? -- "When one's own government starts killing national groups. Doesn't have to be an open declaration of
conflict."
Coined by "Raphael Lemkin", a Polish bibliophile who wrote about pogroms, attacks of Ottomans against Armenians;
post Armenian genocide and Wrodl war Two, in the book "Axis Rule, 1944" as he was looking for a definition. Said
that there SHOULD be a term like genocide accepted in international law. Used to "stalk the halls, trying to get
people to ratify this". In the 1930s he was looking for "legal safeguards" for "ethnic, religious & social" groups; tried
to encourage legal conventions, that international law had to provide safeguards for ethnic/national minorities.
(IMPORTANT IN THE STATES OF COUNTRIES; NUMEROUS NATIONAL MINORITIES, E.G, BOSNIA, E.T.C.).
-- "Does not necessarily mean the immediate destruction of a nation, except when accomplished by mass
killings of all members of a national. A co-ordinated plan of different actions aiming at the destruction of
essential foundations of national groups; aims to annihilate the group themselves. Directed against "the"/"A"
national group as an entity and the actions aren't directed them as PEOPLE but as an IDENTITY. (LEMKIN)
Lemkin looks at Axis Powers during Germany and uses them as an example; says that genocide doesn't mean the
immediate destruction of a minority group except when killed by mass killings but a systematic approach & a coordinated plan of different actions -- if you can PROVE that there is a systematic/co ordinated effort, then it's a
genocide.
AIM IS TO ANNIHILATE THE GROUP THEMSELVES WHICH IS DIRECTED NOT AGAINST ONE INDIVIDUAL, BUT
THE GROUP AS A WHOLE. IF YOU CAN PROVE THIS W. DOCUMENTATION WHEN IT COMES TO CO
ORDINATION, YOU HAVE CONCRETE EVIDENCE.
IT'S BECAUSE OF THE IDENTIFICATION AS TO WHY YOU'LL KILL THEM.

THREE COMPONENTS; ACCORDING TO UN CONVENTION, GENOCIDE MEANS ANY OF THE FOLLOWING ACTS
COMMITTED WITH THE INTENT TO DESTROY

Proving intent {this all derived from

Article 2}
Legal decisions have not generally
required proof of agreements or plans
in order to convict on genocide,
However, the criminal cases at the
ICTY (established 1991-1993) and
ICTR have set a high standard for
assessing the perpetrators state of
mind: genocidal intent must be the
only reasonable inference based on
the facts and circumstances.
The mental state for killing remains
unclear
IN WHOLE OR IN PART; no numeric value required.
--First conviction for genocide in the Jean-Paul Akayesu case , wherein he called many Tutsis during the Rwandan
genocide & haunted out death lists in mid 1994, control over the communal police and gendarmes for PUBLIC
ORDER police, responsible for overseeing the killing of Tutsis, "bourgmestre" of Taba commune in Rwanda. ICTR
(established through the UN security Council, by chapter 7 post 1994) found him guilty of 9 counts of genocide and
crimes against humanity; first time the Convention on the Prevention and Punishment of the Crime of Genocide
was enforced. -- held that "all stable and permanent groups were protected by the Convention." [ALSO
EXTRADIED, MAKING ZAMBIA THE FIRST AFRICAN NATION TO EXTRADITE CRIMINALS]
NOTABLE IN THAT IT WAS THE FIRST TIME THE 1948 CONVENTION ON THE PREVENTION AND PUNSIHMENT
OF THE CRIME OF GENOCIDE WAS ENFORCED. Akayesu sentenced to life.
International Criminal Tribunal of Rwanda established to prosecute genocide/e.t.c against humanitarian law in
1994 by UNSC, under Chapter VII in order to judge people responsible for the Rwandan Genocide & other
serious violations of international law. United Nates Security Council, with UN "allowing you to determine the
existence of any threat to the peace, breach of the peace or act of aggression" & "to take military &
nonmilitary action to restore international peace and security." UNSC has the power to create tribunals to
"pause or cessate conflict".
(Leaders of Rwanda -- Tutsis? -- killed in an air crash; seen as a chance to get at the Tutsis, instead of the norm.)
In 1948, this definition differed considerably from that of crimes against humanity -- I.E, VIOLATIONS AGAINST
CIVILIANS DURING WAR ALONE. This limitation clearly no longer applies.
Look at Nuremberg case law -- trials held by the Allied Forces of WW2 in 1945-1946 -- International Military
Tribunal; while there was no such laws for crimes against humanity in the early 20th century thanks to state
sovereignty, Nuremberg marking the effective start of the International Human Rights movement: later saw the
endorsement of the principles of universal jurisdiction -- "the complaining party at your bar today is

civilisation"; applied the concept of universal jurisdiction when it said that the nations who were plaintiffs at
Nuremberg were collectively doing what each of them could have done individually -- i,e that some crimes
were so terrible any legitimate court could take jurisdiction of them because they were crimes against ALL
humanity (i.e; any member but also on a whole.) Nuremberg saw that the human rights were not solely a
matter of national jurisdiction but that a higher law, international law, is applicable also saw the UN sponsor
several human rights & covenants.
IE: RELEVANT IT LED TO THE ARTICLE THAT ESTABLISHED CERTAIN CRIMES THAT WERE PUNISHED
INTERNATIONALLY. GENOCIDE NOT MENTIONED SPECIFICALLY, BUT INTERNATIONAL MILITARY TRIBUNAL
BEGAN THE MOVEMENT TO HAVE IT RECOGNISED ILLEGALLY.
-- led to the Genocide Convention in 1948, Human Rights in 1948, Nuremberg Principles (determine what
constitutes a war crime) in 1950, Convention on the Abolition of the Statute of Limitations on War Crimes &
CAH 1968 & the Geneva Convention on the Laws & Customs of War in 1949.
Nuremberg encouraged a greater interest in human rights + how they could be applied; what, in fact, they meant.
Nuremberg started in 1945; established to publish axis/nazi war powers. MOST IMPORTANT is article 6: "Crimes
Against Peace" - planning, preparing, initiation or waging of a war of aggression/in violation of international treaties.

(i) Planning, preparation, initiation or waging of a war of

aggression or a war in violation of international treaties, agreements or assurances; (ii)
Participation in a common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i).
HARD TO PROSECUTE; can't be proven.

Why were there such limitations?

(NOTE: BOSNIAN SERB LEADERSHIP BEING TARGETED AFTERWARDS MEANS IT'S
REPRESENTATIVE OF WHAT WAS BEING TAKEN AWAY.)
WAR CRIMES; been there for centuries, violations of the laws or customs of war, among them murder, ill treatment.
CAN ONLY OCCUR DURING TIMES OF WAR and genocide doesn't "easily occur there". ill-treatment, deportation to
slave labour camps, e.t.c
CRIMES AGAINST HUMANITY: murder, extermination, enslavement, deportation, e.t.c.
GENOCIDE DOESN'T FIT THEM SPECIFICALLY -- IT SPANS ACROSS THEM. DOESN'T MEAN IF AN ACT ISN'T
GENOCIDAL, IT WON'T FIT IN ANY OF THE OTHERS; IT ALMOST ALWAYS WILL.
THREE MAIN FACTORS ATTRIBUTED TO GENOCIDE IN HISTORY:
-- associated to wars of conquest; tends to happen in war, BUT IT doesn't need to be of "conquest", the use of
religion to justify the massacre of groups & colonial domination as a reason for the destruction of indigenous people.
(Cassasse.)
Cassase criticises the Convention for excluding "cultural" and "political" political genocide (annihilation of cultural
group); says these should have been included. (USSR was agains this) That same exclusion applies within the
statue of ICC; these genocides don't exist. If you're killed for your political view, it doesn't make that a
genocide.
WHY DO THESE OMISSIONS OCCUR?
Wasn't because it's difficult to prove "political animosity" -- Soviet Union didn't like it at the time because of the Cold
War era?/ Communist Revolution was occurring at the time; there were ONLY political distinctions in Russia, and if
you did not meet them, you could be eliminated too for falling into the category somewhere else.
--> GO TO "NOTES FOR SLIDES"
NO SPECIFIC "NUMERIC" THRESHOLD REQUIRED TO MAKE IT A GENOCIDE -- if the intent is there, that is all
that matters.
CASE : July 1995 killing of more than 8,000 Bosnian Muslims in and around the town of Srebrenica during the
Bosnian war, under the command of General Ratko Mladic. "Worst crime on European soil since the second World
War".
[-- Decision of the ICTY Appeals Chamber in the Krstic case considered that the population of Muslin men targeted i
Srebenica was important because of it's "strategic importance" to the Bosnian serb leadership & because of it's
prominence in the eyes of the Bosnian Muslims murdered fort their association to Muslims and thhe international
community; i.e the UN'S declaration April 1993 that Srebrenica would be a safe land, despite their not existing upon
it -- it's fate was emblematic of that of all Bosnian Muslims -- what they would face, what they'd faced. (VRS invaded
the UN's safe space in July 1995 nonetheless.)

In a unanimous ruling on the case of Prosecutor v.s Krstic (the General Major in the VRS/The Army of Republika/
Srpsa/Bosnian Serb Army, the Appeals Chamber of the Internal Criminal Tribunal for the Former Yugoslavia ruled
that the massacre of the enclave's male inhabitants constituted genocide. Forcible transfer of between 25-30k
Bosnian women, children and elderly was found to be confirming evidence of the genocidal intent of the VRS Main
Staff, too.
Prosecution against Krstic as he was General-Major in the VRS and Commander of the Drina Corps at the time.
Curiously enough, this command went directly against the UN's declaration of Srebrenica in April 1993 as a "safe
area" under UN protection.
"national/ethical/racial or religious group": Convention of the Prevention and Punishment on the Crime of
Genocide" designates groups according to what are "national minorities."

Jurisprudence/political theory in the International Criminal Tribunal for the former Yugoslavia argued
that a persecuted group is often defined by the perpetrators based on perceived characteristics -- i.e,
justifying it or claiming that the perpetrators determine what the issue is, although it may not be
physically manifest. I.E; the "offending/victimised" party is determined on what it appears to be, not
WHAT it is.

The ICTY has also asserted that a group cannot be defined negatively that is to say, victims
cannot be non-Serbs", "non-intelligent", e.t.c.

DEFINITIONS OF GENOCIDE & HOW IT OUGHT TO BE DEALT WITH, AS PER THE UN GENOCIDE CONVENTION
(DEC 9TH 1948):

Article 1, UN Genocide Convention: The Contracting Parties confirm that genocide, whether
committed in time of peace or in time of war, is a crime under international law which they undertake
to prevent and punish. -- This linking was seen as a problem in the Holocaust as the government
didn't know how to link ALL of the

Article 1 of the Convention establishes the crime of genocide in times of war or peace. (i.e; there
can be no reason for the genocide to be needed, apart from a person's mental state)

CAN ONLY BE PUNISHED WHEN IT'S UNDERWAY/OCCURRING.

For that reason, it can take place internally it need not be the outcome of war between states but
an internal campaign against citizens.

There need be no formal declaration of war

THREE COMPONENTS: ", "in whole or in part", a "national/ethical/racial or religious group".

NEED TO PROVE INTENT/ "intent to destroy": Legal decisions have not generally required proof of agreements or
plans in order to convict on genocide. HOWEVER, the criminal cases at the ICTY (as formed since 1991) and ICTR
have set a high standard for assessing the perpetrator's state of mind: genocidal intent must be the only reasonable
inference (I.E; THIS CAN HAVE BEEN THEIR ONLY REASON FOR THE ACT) based on facts and circumstances.
Absent that state of mind, then it can be ANOTHER kind of crime against humanity. This has happened before -there is no "evidence".
ICTY & ICTR have set a "high standard" for assessing the state of mind.
NO SPECIFIC "NUMERIC" THRESHOLD REQUIRED TO MAKE IT A GENOCIDE -- if the intent is there, that is all
that matters. YOU DON'T GENERALLY NEED A HUGE AMOUNT OF DOCUMENTS/PLANS/E.T.C TO CONVICT -THEY MIGHT HAVE BEEN DESTROYED (e.g the 8000 in Srebrenica). For example, the Final Solution did occur
in which Hitler in 1942 came up with a way to systematically destroy the Jews; HOWEVER, there is near new
documentation. Hitler never turned up; so TECHNICALLY we shouldn't be able to convict. Lemkin: "a coordinated effort."
SOMETIMES YOU JUST HAVE TO READ BETWEEN THE LINES.
CASE : July 1995 killing of more than 8,000 Bosnian Muslims in and around the town of Srebrenica during the
Bosnian war, under the command of General Ratko Mladic. "Worst crime on European soil since the second World
War".
[-- Decision of the ICTY Appeals Chamber in the Krstic case considered that the population of Muslin men targeted i
Srebenica was important because of it's "strategic importance" to the Bosnian serb leadership & because of it's
prominence in the eyes of the Bosnian Muslims and thhe international community; i.e the UN'S declaration April 1993
that Srebrenica would be a safe land, despite their not existing upon it -- it's fate was emblematic of that of all
Bosnian Muslims -- what they would face, what they'd faced. (VRS invaded the UN's safe space in July 1995
nonetheless.)

In a unanimous ruling on the case of Prosecutor v.s Krstic (the General Major in the VRS/The Army of Republika/
Srpsa/Bosnian Serb Army, the Appeals Chamber of the Internal Criminal Tribunal for the Former Yugoslavia ruled
that the massacre of the enclave's male inhabitants constituted genocide. Forcible transfer of between 25-30k
Bosnian women, children and elderly was found to be confirming evidence of the genocidal intent of the VRS Main
Staff, too.
Prosecution against Krstic as he was General-Major in the VRS and Commander of the Drina Corps at the time.
Curiously enough, this command went directly against the UN's declaration of Srebrenica in April 1993 as a "safe
area" under UN protection.
"national/ethical/racial or religious group": Convention of the Prevention and Punishment on the Crime of
Genocide" designates groups according to what are "national minorities." NEEDS ALSO TO BE A STABLE,
DEFINABLE GROUP THAT NEEDS TO FALL/THAT THEY INTEND TO MAKE FALL (not a budding minority.) NEEDS
TO BE BASED ON PERCEIVED CHARACTERISTICS & THE ATTACK BASED BECAUSE OF THESE
CHARACTERISTICS. CANNOT BE DEFINED NEGATIVELY; not non-Serbs, must be Muslims. Difficult: many things
defined as "not like us". THEY'RE BASED UPON WHAT THEY'RE SEEN AS BY THE GROUP, BUT IT CAN'T BE A
NEGATIVE VIEW.
NOTES ALONGSIDE THE SLIDES:
ACTS RELATED TO GENOCIDE: also include causing serious bodily or mental harm -- slavery has been argued as
an act of genocide as it involved "serious psychological harm" although it's not succeeded, deliberately inflicting on
the group conditions of life to bring about physical destruction -- means you don't have to pull the trigger; you can
starve them, imposing measures intended to prevent births within groups -- if there's a policy that looks like it's
preventing birth/procreation/furthering of the rage, forcibly transferring group/children to another group -- this has
been applied to the Stolen Generation; considered an abolition of the Aboriginies (def psych harm.)
CAN TAKE PLACE IN TIMES OF WAR AND PEACE; DOES NOT NEED TO BE THE OUTCOME BETWEEN STATES
BUT AN INTERNAL CAMPAIGN. ARTICLE 1 -- can take place in times of WAR or PEACE; internally, does not need
to be the outcome of war between states. Need be no formal declaration of war.
Article 2: acts committed w the intent to destroy and the deliberate and systematic destruction in whole or in part of
an ethnic/racial/religious or national group
TYPOLOGIES: Hegemonical -- primary motive of the ruling group is to "subordinate a communal group by killing
enough of it's members thet the survivors have no will to resist."
Xenophobic - "elite ideology calls for the elimination of an offending communal group."
dEVELOPMENTAL - COLONIAL CLEANSING OF INDIGENOUS POPULATION. "SUPERIOR TECHNOLOGICAL
STATE" -- occupied group/colonised people being flushed out by superior technological. (Chile, Argentina;
1960-1970s -- opponents made to "disappear", look this up) -- believes it's a true "development"
DESPOTIC GENOCIDE -- clearing away of political opponents.
Retributive genocide -- includes clashes between ethnic groups, each trying to wipe one another out. (Rwanda?)
Ideological genocide -- where one group defines another as undeserving of life. (gypsies, slavs, nazis) MORE
OFTEN THAN NOT, MARRIED TO RACE; ETHNIC.
CHARNY QUOTE DEFINES IT ON THE SLIDE; HOWEVER, victims don't need to be defenceless. People can still
be killed even if they are resisting.
ARTICLE 2 OF THE CONVENTION SUGGESTS GENOCIDE CAN BE INTERPRETED AS EXPANSIVE; ICTR states
that sexual violence may be an example of genocide as it certainly constitutes "infliction of serious bodily
and mental harm on the victims" -- quite a few are uncomfortable, although it's referenced in the Akayesu case
in 1998 (as happened in Rwanda). because WOMEN who are abused in this context; the abuse would eliminate
the "social womb" -- the willingness to pro generate, e.t.c, the fear of WHAT you might pro generate.
Unintentional or not way of stamping out the line, especially when there's a racial element -- key link to the
physical continuity of a group. Also considered outcasts; use of mass rape can be seen as an assault on the
community. Used as a tool of power. AKAYESU case considered how rape might be considered genocidal.
- Rape: calculated to bring about physical destruction; women often the key link to the cultural + physical
continuity if oa group. Sexually assaulted women also often isolated from the community.
EXAMPLES OF GENOCIDE:
King Leopold in Congo; up to 8-10 million might have died in 1885-1906. Effects of genocide are "haunting";
everyone remembers this in quite a grotesque way. "Shadow" effect also seen in Balkans.

1904 Hereros of southern Africa approx. 80,000 killed (German government courtesy
of Lieutenant-General Lothar von Trotha) (dubbed the The Kaisers Holocaust (Oluga
and Erichsen, 2010)

1915 1922 Turkey, the massacre of Armenians, est. Number 1.5 million (new
Turkish government) -- Armenian genocide, although it's a criminal offence to call it
that in Turkey.

1918 1921 Jews living in Ukraine, approx. 220,000 by pogroms (what spurred
Lemzinz/?? on)

1932 1933 Ukrainians, 38 million killed by imposed famine, a result of polices of the
Soviet government (not racial)

1933 1945 Europe, the Holocaust, approx. 6 million + Jews & 5 millions of gypsies
& Slavs, handicapped etc.

1955 1972 Sudan, massacre of 500, 000 inhabitants of southern Sudan

1965 1967 Indonesia, killings of 500,000 alleged communists -- more a political

genocide than anything

1965 1972 Burundi, approx. 300,000 Hutus massacred by Tutsis

1965 1972 Guatemalan Indians

1967 1970 Nigeria, 2-3 million Ibos massacred by Nigerians

1971 Bangladesh, 1-3 million of Bengalis killed by Pakistani army

STAUB ARGUMENT ; too "deterministic" , but Staub claims that people are predisposed to violence. RELATES
BACK TO TORTURE -- should it be challenged? ("Some human beings become capable of killing others as
naturally as if they were animals to be slaughtered, w/o even questioning the act."
FROHM ARGUMENT; "distinctly different animal -- man he is a killer, but the only primate that kills and tortures
members of his own species without any reason", can kill -- is this too biologically deterministic. are human beings
actually v. controlled in how they exercise violence tendency? we use sporting rituals e.t.c although staub & from
says we were made to be violent.
BEHAVIOURALIST & ANTHROLPOGISTS; der Berge & Hobbes; explained ethnic discrimination based on a
sociobiological understanding (kin selection; vaguely Darwinian)
Hobbes -- believed that power and self interest are basic human needs
Freud: to "court Thanatos" -- we have the instinctive to kill things and an inbuilt suicidal tendency, but whatever the
ambition/intention, there's a lust & desire to die?
"STRUCTURAL CONDITIONS" -- WHY IS GENOCIDE SO DISASTROUS BUT INFECTIVE?
Sociologist Weber can be linked back to Nazi Germany when it talks about mechanised genocide: bureaucracy &
sophisticated culture - merged with ideology (technology, bureaucracy & ideology) and became instruments of a
state -- the bureaucratisation of an ideology/mentality -- is DANGEROUS. BUREAUCRATIC RATIONALITY -- this
centralised processing can centralise violence. Bureaucracy COULD go mad; it could justify itself, but it could
go vicious and mad and justify THE MOST APPALLING THINGS. wHEN THE DOMINANT IDEOLOGY TAKES
CONTROL OF THIS BUREAUCRACY, GENOCIDE - EASY.

The structural conditions of genocide

Max Weber
(a) his understanding of the modern state as
being the epitome of administrative,
bureaucratic rationality, which controls the
centralised means of violence (once you
can combine the two, you are done for.)
(b) his claim that modern societies are defined
according to conflict between groups who
are competing for scarce resources;
(c) drawing on (a) and (b), that a dominant

group or elite, emerges to take control over the

centralised means of violence and therefore
suppress rival social group.
Plural society -- people fighting for resources; especially in poverty & crisis, conditions for genocide soars. along
with inequalities in political/econimc/cultural/social spheres. Discrimination is often rice in institutional processes
herenot just ethnicity, but resources can also be a trigger. -- consider yugoslavia.
Interventions - As genocide can be criminalised there is reluctance to use the term due to it's relation to article 1 & 2
as it triggers an obligation to punish it. Can be reluctant to ratify it; US didn't ratify it until late 1988 nearly 40 years
after it's adoption, for fear of the Southern states/black would start launching cases. Would violate US security &
other slaves bursting forth to claim compensation for their family.
AUSTRALIAN GENOCIDE; Trollope observed in 1873 that the Aboriginals have been massacred when they
defended themselves and "taught them to acknowledge us to be their masters".
Nulyarimma v Thompson in 1999, dealt with John Howard being responsible for genocide. 10 point plan; attempted
to reform the operation of native title. Claimed that giving the land over to BHP for mining operations and failing to
pursue World Heritage listing for the land constituted a genocidal act against the Aboriginie people. /granted greater
security to pastoralists Complainants claimed they'd arrest Howard, Fisher, Harradine & Hanson claiming genocide by
the 10 point plan and Native Title Amendment Act 1998.
IMPORTANT B/C AUSTRALIA HD RATIFIED THE UN GENOCIDE CONVENTION 1949.
10 point plan said tenancy would extinguish native titles -- complainants said this was potentially genocidal by now
allowing them to claim entitlement/title to the land.
WARRANTS WERE REFUSED, BUT THE ISSUE OF WHETHER GENOCIDE HAD BEEN COMMITTED WENT FORTH
and up to the fed court of australia!
THIS WAS DENIED -- THERE HAS TO BE A "LEGISLATIVE INSTRUMENT" TO IMPLEMENT THE CONVENTION -IF YOU DON'T HAVE LEGISLATION TO IMPLEMENT THE CONVENTION, THEN AUSTRALIA CAN'T COMMIT
GENOCIDE. As there is NO LEGISLATIVE ACT in Australia implementing the genocide convention. IE:
international law on genocide convention doesn't form Commonwealth law! THE MINORITY JUDGEMENT
ARGUED THAT IT DID. (Dissenting judge also found that there was "no intent" to commit genocide.)
THEREFORE, NOT A CRIME. IN THE ABSENCE OF LEGISLATION, GENOCIDE SUIT WOULD NOT FIT.
government had not ratified it; therefore, not part of gov't law.
Otheres argue international law forms an automatic jurisdiction -- e.g, Merkel J -- as these international conventions
are considered a form of jus cogens - inviolable/higher law. (e.g, per the Teoh case in 1995.) They attempted to pass
a bill on it, but was eventually scrapped in favrou of the International Criminal Court Act in 2002, which declared
genocide a crime.
(Merkel also said he doubted that there was intention to commit genocide.)
WE'VE ATTEMPTED TO STAMP GENOCIDE OUT: in 1948 on December 9th the UN General Assembly unanimously
voted to create the "UN Convention on the Prevention and Puishment of the Crime of Genocide". This Convention
specifically follows the 1915 annihilation of Armenians. Number of states that have currently ratified this conversion
sits at 143.
Genocide defined as: any of the following acts omitted with the intent to destroy in whole or part, a national, ethnical,
racial or religious group. This includes killing members of this group, causing serious bodily or mental harm to
members of this group, deliberately inflicting conditions of the life on the group calculated to bring about it's physical
destruction in whole or in part, finding a way to prevent births within the group or forcibly transferring children of the
group to another group. (Article 2.)
(Article 3) -- anything in this can be punished; genocide/conspiracy to commit g/direct & public incitement to commit
genocide, attempt to commit genocide & complicity in genocide. (IE: these war crimes extend to the reach of nazi
guards.
FIRST DRAFT OF THE GENOCIDE CONVENTION ORIGINALLY INVOLVED "POLITICAL KILLINGS" -- i.e. killing
people who didn't hold the same political views as you did, although people were politically opposed to this (USSR) -as these decisions are political tools are politicised; the state/agreeing state's agenda is also a key element in what
their final decision may be, not merely the attitude that is "right".
Recognised that "at all periods of history genocide has inflicted great losses on humanity" & international
cooperation was needed to "liberate mankind from this odious scourge". Robertson; "there can be no doubt that the
rules against torture has evolved into a prohibition which every state has evolved into a jugs cogens prohibition
which every state has a duty owed to the international community to outlaw & punish."

TORTURE -"The moral basic right of all is that to life -- guaranteed by Ariticle 8 of the Universal Declaration. At it's highest
-- when the State takes life pursuant to a policy of genoice, this right is so forcefully protected by international
law tat it justifies armed intervention by other states, whether pursuant to Chap VII or by way of a unilateral
humanitarian mission and the ICJ may order provisional measures against a government under the Genocide
Convention. The right to life stands as fundamental and non-derrogable in all human rights conventions, the
barrier against all forms of summary execution without a fair trial, whether of soldiers shot as they surrender
or dissidents assassinated by death squads. This right is the basis for imposing duties on the state to
investigate & prosecute any of it's agents reasonably suspected of unlawful killings.
Also: no-one shall/SHOULD be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
IE: it's evolved from a prohibition which every state has a duty owed to the international community to outlaw and
punish. TOMORROW: cover genocide & e.t.c.

POWERPOINT TWO
HUMAN RIGHTS often misapplied; what are RIGHTS and what are HUMAN RIGHTS?
Human rights; tends towards prioritisation -- what right wins out over the other ? Philosopher Hegel
says "tragedy is not whether evil wins out over good"; rather, "it's a conflict between right & right." IE:
varying beliefs. THAT'S where the prioritisation lies -- Nazi Germany must have thought they were
doing right; other people thought they were doing right.
Arrndt -- the rights of man meant very little or nothing at all to refugees, stateless persons, outsiders
within the boundaries of an alien state
Concepts; rights, duties, "universal relativism".
What does the duty to human rights entail? Put that in a broader context: obligations, rights, e.t.c.
Universalism also highly contested -- tempting to think our community's values are universal; really, it
might just be a fiction.
How do we implement human rights? There are states that abide by human rights protocol but IS it
possible to measure? It's so sterile, we might not ACTUALLY know what we're talking about.
What kind of rights deserve to be described as human rights, to attract greater protection & respect? -civil/political more important, or socio/economic? What is the significance of this distinction?
1960s; conflict between "First World" - lib capitalist, "Second" -- Communist economies in Cold War -fundamental disagreement JUST about and between political & economic rights between USSR & America.
USSR thought every person would have a state-sponsored car & flat; live an "equilatrian lifestyle", but you
weren't meant to get RICH. Whereas the US thought you should accumulate money and get free speech, e.t.c. SO
US emphasised political rights; to vote, free speech. Commies emphasised economies, not political freedom. SO
the War was based upon the rights people had.[civil + political]
SO which rights should be more protected -- economic safety, or political safety?
HOW do you define a human right & HOW do you resolve it? What if a person's right is in conflict with one
another? e.g; the dirty bomb scenario, if there's a terrorist who may have vital information that might yield up
information about a bomb, weapon, PLOT. if it's not found then a certain amount of lives will be lost. SO, DO
you torture him for that information or not. HOW do you enforce it -- some notable international jurists in the US
who claim "local enforcement is always the best means". e.g; court structure, e.t.c. (ICTR? DID become
fundamental there.)

DIGNITY; Article 1 of the UDHR, 1948 [drawn up post WW2]: "All human beings are born free and equal in
dignity & rights." Appears in numerous convention; e.g, International Convent on Civil & Political Rights. [1968]
-- e.g, identity, control, agency. Issue of WORTH is most important here. Roman scholars related it to "rank",
your station as a human being; Dignitas hominis. If your station as a human being is violated, then you've lost
your dignity. "wORTHINESS -- THE OUTER ASPECTS OF A PERSON'S SOCIAL ROLE" -- stripped of
this, your esteem, e.t.c, is stripped. (should be form of redress if "injured".)
"Worthiness, the outer aspect of a person's social role which evokes respect + embodies the charisma + the esteem
presiding in the office, rank or personality."
Main point; should be able to "form your own way of living".
-- Google storing massive amounts of data, same goes for Facebook, e.t.c; should be alarming as it's an "affront"
to your dignity -- it turns you into a suspect, strips you of the integrity or merit you're implicitly given when you
create a personality on the internet. If your agency is affected, then that impedes on your dignity.
ANYONE Bwho intrudes on someones inherent freedom violates that inherent dignity -- E.G, euthanasia.
(But once you go through state- assisted suicide, will the state start forcing those on you?)
"Those who speak of dignity must respect the freedom which humans need in order to form their own opinions
and act upon them." (IE; can't impede because THAT'S hampering their agency; a form of coercion.)
- Anyone who intrudes on someone's inherent freedom violates that person's inherent dignity; and in an essentially
cylic world, this'll come back to us. Every form of coercion which significantly restricts a person's freedom is an
attack on human dignity.
-Varies from culture to culture, this term of dignity -- an African's society of dignity might not be a Western idea of
dignity. (cultural relativism).

Some claim states should dictate morality, e.g when it comes to sexual norms -- that is in fact, an affront on
morality. BUSINESSES AND GOVERNMENTS ARE INSTITUTIONS; NOT HUMAN; they are
COMPRISED of humans, but an executive decision will be politicised in their interests (think the
Communists, think the Nazis.) Again: rights should be based upon widely accepted social mores, not the
morality of parties. (read this:http://www.kongregate.com/forums/9/topics/300862)
Dwarf throwing; Wackenheim in 2002 - banned in France, ban challenged, upheld by the equiv of
Supreme Court in France, went to the U.N, went to America in 1989 and upheld by the UN Human
Rights Committee. Affront to human rights/dignity to encourage dwarf throwing.
UNHRC (body of 18 experts that meets three times a year to consider the reports submitted by it's 162 member
states) has no "binding" powers, but it has persuasive ones; can "shame" the authorities if they were to overturn
the ban. (much like the general assembly)
-As humans, we have certain inviolable rights - comes down to jus cogens, too. HR belong to an individual as a
consequence of being human; entitlement accorded to ALL humans. Not granted: entitles to enjoy simply b/c we
are human. DEVISED FROM THE THEORY OF NATURAL LAW, THAT THEORISES THE EXISTENCE
OF NATURAL RIGHTS.
Diff between natural law and natural rights ; not always the same thing. Natural rights have basis in natural law,
but natural law lawyers might not believe it in the same way.
NATURAL LAW V.S NATURAL RIGHTS
HUMAN RIGHTS; belong to an individual as a consequence of being human -- entitlement accorded to all

humans; simply entitled to it by virtue of being human. Derived from the theory of natural law, which in turn
theorises the existence of natural rights.
Natural law concept of rights:
Based on the concept of universality. There are problems, but many natural lawyers argue that there are CERTAIN
UNIVERSAL rights to be had.
These natural law rights are inalienable : CANNOT be taken away by any means, CANNOT be surrendered. E.G;
the RIGHT TO LIVE --- you cannot just willingly give up your "right to live".
CANNOT be abridged; can't be qualified to any specific reason, modified or adjusted; the right not to be tortured.
Dignity, again, central. (thanks, Kant!)
Centred on the idea of human reason; if we have the FUNCTION and facility to reason, that makes us "better than
the other brutes of the earth" -- allows to understand the innate truth of our rights and interest. (Staub + Frohm
would disagree!)
Began in Greek political/literary theory -- 500 BC.
Natural rights also purportedly of "unknown provenance" -- Bentham said he didn't know if they came from God
or or from "nature". Content "unknowable", if these rights ought to have stemmed from "nature" then their content
was "unprovable" & "unpredictable". Bentham's arguments responsible for natural rights falling out of fashion in
the 19th C & 1/st half of 20th C. Would re-emerge under the title of human rights alone.
-Sophists -- taught law -- laws of state & nature & virtue. Made "arguments for the sake of argument." Doesn't
NECESSARILY prove a point (sophism.) BOTH above the state; state's laws need to conform to natural laws.
Plato said it was unprincipled for these to receive payment for arguments.
Need to distinguish a law of state & a law of nature. Law of state CANNOT EVER effect a law of nature: if
something is understandable in the "inherent order of things", law of state should IMITATE that -- REFLECT
that.
Laws of nature are aboe those of the state. Laws of state must conform to laws of nature.OTHERWISE
INVALID.
UDHR example of mutable natural law that cannot be violated by state law; if a state law attempts to
violate it, that's invalid.
e.g law will distinguish between Barbarian & greek, but natural law won't; same goes for refugees; we distinguish
ourselves based on colour, e.t.c, but universally, we're just human. Sophists would argue this claim is
"untenable".
Plato: "Laws are only necessary when reason fails".
Law of reason is the "ideal law". -- key natural law idea -- ideal law is THERE, simply need to identifyy it. this is
where the idea of rights & obligations stems from this idealism; something that is inherent and should be there.
Positive law/state-made law is weak; these state-passed provisions can defy reason. (i.e.; positive law is necessary
to keep people in "check" because we are all inherently wicked". But having them says we are WEAK because we
can't abide by certain provisions. + also allows for politicisation.)
Aristtle says that natural law is an "intention" of nature -- i.e., you understand discover what is inherently natural.
We are MEANT to understand & abide by these.
-Critics of natural law tradition been many --SOME ARGUE AGAINST THIS;think of Jeremy Bentham
(utilitarian) who relates it back to the French Revolution with weapons e.t.c -- claimed that it was "vague and
abstract nonsense". Bentham further pointed out that all the rights in the French Declaration, which championed
natural rights, right to liberty, e.t.c, would be limited by law, thus begging the question of what content the law
needed to have to be compatible w. liberty. Added that no-one was born free -- parental authority, then work
authority, e.t.c.

Could only create rights through PARLIAMENT: the idea that there's something inalienable for us is odd.
Parliament creates laws; if there's a right, it'll only exist through parliament. (i.e; can only be promulgated.)
Attacked William Blackstone (talked about natural reason & natural right; not a conservative, but regarded by
American revolutionaries as a forefront for these discussions) & the French revolution for the idea that there are
these "inalienable rights" Says People are motivated by pleasure -- therefore, what was of interest to them was of
maximum interest and might not have contributed to other one's interests. Can also only be pushed to do things by
the command arm of law.
only good law maximise human pleasure & minimises human suffering. (Hedonistic; like Kant?)
Bentham: doesn't argue thatt there needs to be a hierarchy, but that it's an IMPERICAL view -- CAN'T SPEAK
OF LAWS/RIGHTS THAT DON'T EXIST UNLESS THEY'RE PASED IN WRITING BY SOMEONE.
Wendell Holmes sees it as natural force; a "naive state of mind that accepts what has been familiar and accepted by
them, their neighbours as something that must be accepted by all men elsewhere" (1920). Universality CAN'T
necessarily exist. W-H says nature doesn't have a particular intentional scheme/course at all. (would fit into
post modern beliefs that there ISN'T + CAN'T be a meta narrative to the world.)
+Has it's limitations -- what IS nature? IS there human nature? Is it simply socially constructed?
Objective standard of rights; set standard we can verify and identify; it's NOT what you think.
CANNOT EXIST be modulated -- can't be dependent upon what you think/subjective. It's what
EVERYONE thinks. Therefore, no. -- impericism; don't know what you're talking about when you can
prove it is another detractor. Utilitarianism & others forced natural law into retreat.
& also imperialism (impericism) which came from colonialism in the 19th C; difficult to talk about human
rights/rights of people -- as the only right there was conquest. THAT the central right discussed. Hard to
talk about human rights with imperialism; it assumes conquest.

So from 500 BC - Middle Ages, reason in rights & obligations was paramount. Lots of complications in between,
however. Reason underlines EVERY SINGLE HUMAN RIGHTS INSTRUMENT that's been created since the
18th century.
--REASON CAME TO BE DISPUTED ALONG W. LAWS OF NATURE;
Marx -
e.g The Origins of the European Convention of Human Rights says very little on natural law/reason.
Encyclopaedia of Human Rights -- nothing of human nature.
CERTAINLY VERY LITTLE DEBATE ON NATURAL LAWS/RIGHT today.
-Robertson: universality came from Roman empire.
Universal premise of "international human rights law" comes from the "laws of the people" -- the just gentium.
Has to be seen as a product of this. SOCIAL MORES, in other words.
Paved the way for international body law; when we talk about the body & how it's structured, can see it as a
product of the international system as developed by Roman empires.
When we speak about "rights per se" they should not be confused with law as such;it here'sdifference, one is
legislation and the idea of a right "per se". (WTF.) One is enactable, one is less so?
Roman law & Greek law did not make these distinctions clear. (One is less tangible, or they're often mixed; often
spoke in terms of obligations, e.g Bible -- "thou shalt not kill".)
Rights/obligations often implied in religious codes but worded as obligations; commands; e.g, in the Bible, the
Moses law, e.t.c They were COMMANDS, DUTIES -- in a way, OBLIGATIONS (with rights embedded in

them) ALTHOUGH NOT SPECIFICALLY WORDED. NATURAL LAW INHERENT HERE, BUT NOT
RIGHTS.
I.E; focused more on positive obligations.
More often/could only be implied in religious codes, never articulated; "Thou shalt not kill; right to life."
--natural law + middle ages.
St Thomas Aquinas refs natural law; calls law an "ordinance of reason directed towards the common good".
Aquinas says GOVERNMENTS SHOULD GOVERN FOR THE COMMON GOOD; we have an entitlement
to this. (no politicisation for your personal interest.)
These comments passed in the 13th C.
Idea of reason is combined with that of "common benefit" -- no laws should be enacted for private profit.
(530-560 A.D.)

Law as an ordinance of reason directed

towards the common good and
promulgated by the one who has the
care of the community (St. Thomas
Aquinas)

Aquinas: "typologies of law" -- eternal & divine. Eternal law relates back to god -- it is the unchangeable effective
decree of God binding the whole creation to the fulfilment of it's purpose.
Aquinas -- human beings have the capacity to obey or disobey. We have a special means to do this; we
can understand what precisely we are doing -- we are aware of good and bad.
Persistent trend in even Aquinas's 13th century is in duties rather than rights -- Aquinas stresses "obeying the
law", not recognising and respecting other people's rights. Comes back to role of reason ,too.
-We have a reasonable understanding of natural rights and obligations because we are HUMAN; this is a kind of
course we understand & need to respect.
17TH C -- state became key figure of international law. "Fairly recent phenomenon." (post French
Revolution.)
Athenians did not follow into this state model.
Statist view of rights born in 17th C. Also known in "Westphalian system of rights." Westphalia treaty signed in
1648 -- ended the Thirty Years War in Europe (conflict between Catholic and Protestants). Agreement made
between the princes of both faiths that borders would be respected, and within them, religions would be supreme.
IE they began to divide up STATES and PEOPLES with different views, upon which others couldn't impinge.
[ pope didn't like this.] CAN MAKE TREATIES + BREAK TREATIES but subjects weren't recognised here;
sovereignty was total here.
Westphalian: MADE DETERMINATION OF RIGHTS A MATTER OF STATES.
States are the only subject of international laws; not individuals. Has been challenged.
Sovereigntiy grew; States could make treaties & break treaties, but human subjects had no right against
the state (not recognised?). You would have certain rights if you travelled elsewhere, as a "representative
of the state". Seems flawed.

Here, states were sovereign; states were kings; states made the laws and the rules. Humans simply have to sit
underneath them.
-- "RIGHTS REVOLUTION"
"Liberal rights/inroads" -- i.e. the way we began being seen again -- originated in the Middle Ages took place with
the Magna Carta in 1215 AD. Significant constitutional document in European history & common law history in
turn.
King John took over from Richard the Lionheart; John exercised arbitrary power. Barons felt/said this arbitrary
power needed to be "controlled" -- first time monarch was told to answer to another power, which was Parliament.
This parliament was made up of barons; crude; they would have had their interest.
First time political rights emerges - in terms of us getting our say. First doc forced onto a King of England by a
group of his subjects.
First principle of Magna Carta: "limiting the power of the king." Magna Carta -- "King is not Absolute". No man
will deny or delay justice. Right to be judged by one's own peers; foundation of jury/ phrased as "no freeman shall
be punished/judged but by the law of the land." Included various clauses; barons could at any time meet &
overrule the will of the king if he did not meet or somehow defied the provisions of the Charter. Also; "to no man
will be sell to no man will we deny or delay justice of right."
HOWEVER they just wantd to overthrow him, let's get real. Robertson claims it was signed by a "feudal king
feuding with thuggish barons who was forced to the accede to their demands."
We see this in Article 61 of European Convention on Human Rights.
Affirmed the rule of law.
-Contest between "natural law" & "state tradition." despite Sophists claims state law had to adhere to natural law.
Positive law shouldn't have to be there, but if it is, it should reflect natural law.
ATTACK ON NATURAL LAW CAME IN 15TH C. Preferred reasons of state & laws; said we're not
particularly bright, but prone to brutality.
"Civil laws are nothing other than verdicts given by ancient jurists, which, reduced to order, teach our present
jurors to judge." -- Macchiaveli. (i.e; there's reason in them that we can adhere to, but someone just CAME UP
with it; not a "norm" inbuilt in our dna.)
-- just the law of past jurists. Laws of command.
-Assumes mankind is wicked; when given the opportunity, we'll be wicked, rather than reasonable. "Hunger and
poverty make men industrious, laws make them good."
- Machiavelli says we should abide by these under the watch of a state. // also fits with Plato's impression of
positive rights/laws.
"Men never work any good unless through necessity, but where choice abounds and one can make use of license,
at once everything is full of confusion and disorder.
-State and right is fractured in 16th Century. Machiavelli cynical along w. Thomas Hobbes. (Hobbes also
commented on genocide; men innately drawn towards power, e.t.c)
Hobbes: law is "one thing" rights, "another". One of the most important conceptual (if not simplistic)

features.
"Social contract";; we are entitled to expect to be governed in a certain way, and entitled to have certain rights
protected. (which also means we give up certain values too
Without some understanding with our governors in regards to rights, we'll have a very brutal life. We need LAWS
and we need the government of the day to protect those liberties. IE: we surrender some liberties for the military's
use, e.t.c; surrender our right to bear arms for the military of the day, but in turn are entitled to protection. THIS is
a social contract.
IE; social contract between governors and governed to protect natural rights.
(This distinguishes between the state and rights; laws per se and rights per se in this.)
Human beings are not social beings whose natural state is NOT political. We are animalistic; we serve to protect
ourselves. .
Hobbes misunderstood: he wasn't AGAINST natural rights or a supporter of despotism, but he did break the link
between God and state. Said state has to behave in a certain way. (Desacrialized the state). (Plato: 432 AD)
CONSENT OF THE PEOPLE MATTERED MORE.
Before this, monarch was thought to be governed by divine law -- God appointed kings. Hobbes said there was
no such thing despite Aquinas' view on divine right: PEOPLE appointed their kings/and leaders. People only in
power by virtue of our consent, not divine right. If we don't consent we execute/imprison/exile them. DIVINE
RIGHT: a fiction. The one thing that mattered to us is self preservation; we'd get this in a good gov.
OVERRIDING NATURAL RIGHT.
DISTINCTION BETWEEN LAW PROPER & RIGHT PROPER:
We have to distinguish between the idea of a right and a law, says Hobbes.
Right: liberty to do & forbear.

Right consists in liberty to do or forbear,

whereas Law binds to one of them; so that law
and right differ as much as obligation and
liberty -- Leviathan, Hobbes.
Law: binds to one of them; law and right differ as much as obligation. OBLIGATION/command is one thing,
liberty (what we should be entitled to do) is another thing.
--Revival of interest in natural law in the 16C-17C WITH THE EXECUTION OF CHARLES I in 1649.
e.g unparalleled, very first example of King Charles I in 1649. Battled against parliament of puritans, including
Cromwell & others. Made it clear he had not divine authority to rule britain.
Charles lost; tried & executed. Argument: "said as the king had no peers, he could not be tried by anybody. (He
was the king! He was above you!")
Divine right challenged; the king was the law was ignored.
Impunity was thereby challenged -- you cannot commit crimes as head of state and go without punishment.
Impunity was used and challenged from hereon in. TYRANNY HAD TO BE HELD TO ACCOUNT:
LEADERS TOO. (this would later surface in state sovereignty too.)
--

Augusto Pinochet; Chilean dictator in 1973. Arrested in London in 10 October 1998 for all his crimes
against humanity in ahouse of lords when visiting Britain. Trial of Charles the First enabled this; meant
that no matter where he was, he was to be held responsible.
(whereas zambia was the first to extradite akayesu in 1998.)
-Locke; liberalism; social contractarians(comes from order of "nature") shifted focus from duty (natural law &
human beings subject to moral law) to rights. Consider rights as serious, MORAL FACTS -- not just natural
law, but natural rights.
Expands upon this in the 2nd Treatise of Government (what he wrote). He was influential of the American
revolution.

Locke asserts that men in the

state of nature are free and equal,
and at liberty to do as they wish
but only within the bounds of
the law of nature. v.s Hobbes
beliefs man wars against man.
Liberties & expectations we have of one another; we can't simply do as we wish, but we almost respect the rights
of others as is expected. (this is an obligation in itself)
IE; even in nature, humans bound to respect limits regarding others. This comes from natural law, too.
V.S Hobbes; when mankind wars against mankind, WE still have to RESPECT one another's entitlements. (i.e;
not a pessimist.)
Locke firmly linked to American Revolution; Declaration of Independence links to this; makes a natural
law statement -- "we hold these truths to be self evident", e.t.c. (THIS IS NATURAL LAW STATEMENT:
IDEAS THAT WE ARE INALIENABLE< E>T>C>). This reappears in the French Declaration of the Rights of
Man in 1789. (When this movement resurfaced.)

The state of nature has a law of nature

to govern it, which obliges everyone;
and reason, which is that law, teaches
all mankind who will but consult it, that
all being equal and independent, no one
ought to harm another in his life, health,
liberty or possessions. (J. Locke)

 Clear on rights to property

The duty to respect others comes from
natural law
Forfather to American law; American
Constitution is a natural law document.
(Marx challenges the rights of men. Prefers economic rights; has led to issues in the past, e.g with USA.)
NATURAL LAW: NOT THE SAME THING. LAW:conglomerate of views of how it should be
conceived, but not necessarily how rights are realised. From the 17th century it took a plethora of scholars
to start constructing what we understood as natural rights. Also some such as Hobbes imply that some
have to be given up.

-Distinction between "liberties" & "rights" -- we only have liberties, as Aus doesn't HAVE an ingrained
constitutional department. Alternately; you can write to your parliamentarian, but you don't have a right to a reply/
expect it.
Other key docs; French Declaration of the Rights of Man 1789 - also led to the three generations of right; liberty,e
gality, fraternity.
Thomas Paine: role in the American Revolution; Author of Common Sense. Influential in the drafting of the
Declaration of Human Rights. -- "some writers have so confounded society with government as to leave little or
no distinction between them, whereas they are not only different but have different origins. Society is produced by
our wants, and government by our wickedness. Former promotes or happiness POSITIVELY by unitingg our
affections; latter NEGATIVELY restrains our vices."
"Governments might be necessary, but only necessary as a wicked phenomenon." -- SHOULD RESTRAIN
GOVERNMENT ACTION.
-- Bentham; believed that natural rights were "nonsense upon stilts" that they didn't fully exist or properly exist for
that matter; claimed that laws and rights needed to be ratified as we were able to follow the command of law
(thinking of positive rights). Believed if there was nothing to back natural rights up; indeed, if it wasn't objective
and couldn't be ratified, then it didn't exist!

POWERPOINT THREE
Natural Law: stems from the utilitarian movement. Comes from the pleasure principle; 'you
maximise the pleasure of individuals for the greatest good.'
---IMMANUEL KANT -- v important to human rights & international law, credited w. laying the
groundwork for the modern understanding of human rights as an ethical practice: "Right to
freedom" & "from tyranny" fundamental; to a certain right you can't change these certain,
incontrovertible rights.
Positivism critic -- things can only matter if they can be verified; if you can't prove it, they don't

exist, although you can't prove natural rights. (Hobbes?)

Bentham's attack is utilitarian.
& also imperialism which came from colonialism in the 19th Century; difficult to talk about
human rights/rights of people -- as the only right there was conquest. THAT the central right
discussed. Hard to talk about human rights with imperialism; it assumes conquest and
assumed subjugation.
--RIGHTS IN SHORT ARE ENTITITES WE CAN POSSESS; claimed against others (e.g Hohfeld),
misunderstood + multiple in nature.
Glendon -- our rights talk in it's absoluteness promotes unrealistic expectations, heightens social
conflict + inhibits dialogue that might lead towards consensus, accommodation + at least the
discover of common ground. Rights NOT amen of social conversation; ends it rather than continues
it.
VARIOUS LEVELS; POSITIVISM/UTILITARIANISM/19TH CENTURY.
Hannah Arendt (1906-1975)-- "rights are fundamentally connected to the state -- meant very little or
nothing at all to refugees, stateless persons, outsides within the boundaries of an alien
state." (1906-1975) our political liberties within the state. fundamental rights exists within the
political community itself; the right to LIFE.
TECHNICALLY SPEAKING it's a violation of international law to deprive individuals of their
statehood, but it's the state -- that YOU BELONG TO -- to define your rights. NO SUCH THING AS
INTERNATIONAL RIGHTS/STATESMANSHIP -- only stems from the authority of the state; only can
exist within that community. (i.e; our right to rights is based in the political community we are a part
of. so if we're in a country that doesn't have a right to rights in this level, then we're not technicaly
entitled to it. Lotus principle relates to this.
Citizenship is defined by definition, by the state. May be national and incontrovertible but only come
from the authority of the state; our "rights" only exist within that political community, and only that
which we are a part of.
SO our rights are limited; controlled by the political party we are a part of. (Lotus principle would
back this up.)
--Realpolitik rules; a contemporary movement in the 1900s.
Robertson -- evolving international law, but has "inherent deficiencies" -- REALPOLITIK (realpolitik:
politics/diplomacy based on power and practical/material factors.)
Constant problem of state supremacy -- "Realpolitik" -- practice of ruthless political expediency by
the states; politics based primarily on power and on practical + material factors
Had good and bad in the 19thC-20thC.
REALPOLITIK IN THE 1900S -- saw the emergency of cruel warfare but also saw generation of
international humanitarian law, laws of armed conflict ; e.g. Hague Conventions in 1899-1907
(Laws of Armed Conflict + Humanitarian Law) (series of international treaties + declarations that
were among the first formal statements of the laws of war) still valid, Laws of Armed Conflict or
Humanitarian Law -- limitation on suffering during war time; international structures in place
restricting conduct of states (described what could, should, shouldn't be done in war. If breached/
violated, will put state in questionable reach.
E.G; chemical warfare. Hague Conventions properly outlaws this. In 1899 & 1907 many were

interested in creating international structure of law that would restrain the use of force by key
powers. (Quite a few others.)
Vital article, Hague Convention:"the right of belligerents to adopt means of injuring the enemy "
Makes it clear that one cannot use any type of weapon/inflict mass suffering so as to obtain one's
goals in war. Other prohibitions -- v. much a do as you would have done unto you kinda thing.
"Sentiment/legal approach to rights."
Article 22; the right of belligerents to adopt means of injuring the enemy is not unlimited.
Article 23: prohibitions on using poison or poisoned weapons; prohibitions killing treacherously
individuals belonging to a hostile nation or army.
--World War I 1914-1918; created interest in trying to draft docs of what they considered rights; not
necessarily the human rights we consider important now, but rights like security.
League of Nations, 1919; said use of force had to be controlled e.g w the Kellogg-Briand Pact in
1928. Use of force heavily circumscribed right. Ended in WW2; becamee redundant; Robertson
argues it's "too conservative and half hearted".
LON forerunner to the UN in 1919 onwards (to 1946); HOWEVER, was amply too conservative/halfhearted.
"More progressive and more developed." - Kampmark.
-- Structure of punishing aggressors THAT LATER developed into a model like the U.N; of the Allied
powers
alluded to rights and certain obligations of states; a "collective security" that they were entitled to -e.g if a state wanted to be an aggressor, ought to be punished.
LoN failed to determine HOW these states should've been punished. (no structural powers)
Said there should be international police force, but those who were part of the league weren't
interested. Tried to impose sanctions.
This idea brought about the idea of "collective security".
During this time, attempted to define what international citizenship might be-- do people need
documentation, e.t.c?
American isolationism -- the UN tended not to get themselves involved in these matters; avoided
alliances with other nations in order to avoid being drawn into wars not related to direct territorial
self defence {broad foreign affairs doctrine held by people who believe that their own nations i best
served by holding the affairs of other nations at a distance.}
--1920s & 1930s; a new "international morality" booms {about/around WW2}
1928 States attempted to abolish war, foolish at that seems -- produced the Kellogg-Briand Pact:
France & the United States to abandon war as a way to settle disputes. War only to be used in very
limited ways. SIXTY COUNTRIES SIGNED UP TO THIS.
Pact failed, enforcement weak, desire to act by it weak.
Certain Axis powers violated the Kellogg-Briand pact with illegal aggression, but the LoN failed to
stop these aggressors (Germany, Japan, Italy, Soviet Union.)
- Concerned about the deprivation of citizenship for Jews.
League of Nations -- Haiti -- raised the fact that ethnic minorities should be protected in 1934, but it
was dismissed. Other rights were being considered more; right to security, to be free from war, e.t.c.

REJECTED.
Had super ineffective sanctions against aggressor states.
--This world war 2, time, however was "The Age of Extremism" -- extreme ideologies born such as
Nazi Germany. (1939-1945)
Doctrine of HR challenged as "nonsense" -- attacked by fascism & communism. Regarded as
individualist nonsense as Commies. Human rights "bourgeoisie."/middle class morality. Argument
against this from Commies was that it "concealed the nature of the economic relationship
between the parties". IT'S FINE TO TALK ABOUT AN INDIVIDUAL RIGHT, BUT IT DOESN'T MEAN
MUCH IF THE ECONOMIC DISPARITY IS NOT ADDRESSED.
Others; "collective rights generally trump individual rights".
Fascism -- saw it as a "liberal conceit."/ "middle class morality".
Liberalism in retreat; mild mannered but progressive, no hard ideologies -- they swing but they also
compromised.
-- "RIGHTS MENTALITY"
HG Wells, Barbara Wootton, JB Priestley tryring to encourage a declaration for human rights;
forerunner for the UDHR. (wELLS PG 30 CAH) -- included ideas like sufficient education to make
the person a useful and interested citizen; easy access to info upon all matters of common
knowledge throughout his life, in the course of which that person would enjoy the utmost freedom of
discussion. Protection of property from private violence.
Trying to protect rights as they develop.
-- INTERNATIONALISM
EMERGENCE OF INTERNATIONALISM CREATES THE IDEA OF WHAT WE NOW SEE IN TERMS
OF INTERNATIONAL COVENANTS-- socio cultural economic rights, civil political rights. (albeit from
the 1968 charters)
Grows out of sentiment from Franklin D Roosevelt from 1941 who says we need to uphold FOUR
KEY FREEDOMS. NOT NECESSARILY RIGHTS -- more so liberties? "Freedom of speech and
expression, freedom of worship, from want + fear.)
Also came up with the Atlantic charter: in destroying national tyranny, we need to establish a regime
of peace that will afford all nations the means of money & safety w/n their own boundaries and
which will afford assurance that all the men in all the lands " -- FREEDOM OF FEAR. FREEDOM
FOR WANT; yu won't starve, e.t.c.
Article 6 of the Atlantic Charter: "after the final destruction of Nazi tyranny they hope to see
established a peace which will afford to all nations the means of dwelling in safety which will afford
to all nations the means of dwelling in safety within all their own boundaries."
BUT we're back to where we are in 1919; LoN failed. We had to have a collectivee security structure
-- this happened with the United Nation, with various means of ensuring this would occur.
-United Nations: at it's core, interested in collective security.
Principle Five: US, UK, France, Russia, China. POST WW2; began when British, US Soviet +
Chinese reps met to draft the charter of a post-war international organisation. Reps of 50 nations to
complete the Charter of UN.

(Also has it's core as human rights.)

DIFFICULT TO DRAFT;

U.S., British, Soviet, and Chinese

representatives meeting at Dumbarton
Oaks in Washington in August and
September 1944 to draft the charter of a
postwar international organization
Representatives of 50 nations met in
San Francisco April-June 1945 to
complete the Charter of the United
Nations. (FINALLY CREATED HERE;
the Charter remains the most important
document. "governs" the powers of the
U.N)

BUT we're back to where we are in 1919; LoN failed. We had to have a collectivee security structure
-- this happened with the United Nations.
UN Charter -- human rights or is it in a "different era" of state sovereignty? Because post WW2 the
biggest difficulty was impunity w. war crimes -- heads of states and tyrants couldn't behave in
anyway they can? Does the UN give any protection? (LOOK THIS UP; LOOK AT IT'S
LIMITATIONS.)

UN Charter -- signed in 1945 by 193

states which was the foundational
treaty of the United Nation; entered
into force after being ratified by the
permanent five members.
We the peoples of the United Nations
are determined to reaffirm faith in
fundamental human rights." -- Locke

has a similar permeable to this.

Article 1(3): To achieve international
cooperation in solving international
problems of an economic, social,
cultural, or humanitarian character,
and in promoting and encouraging
respect for human rights and for
fundamental freedoms for all without
distinction as to race, sex, language or
religion;

These are affirmations of "international law". Is it obligatory?

Some of these obligations are only "declaratory" (as per the General Assembly) -- one thing to be
properly bound by it/what's obligatory (e.g; look at the way law is formed, the way Bentham says
laws need to be properly examined and set out what a person must do, by law.) AND what is simply
what you claim must be done -- echoes natural law & natural rights. [SUCH PROVISIONS DO NOT
CREATE OBLIGATIONS ON THE MEMBER STATES PER SE.]
Article 55; to create conditions of stability + well being for friendly relations between nations +
well being for friendly relations between nations "on respect of principle of equal rights and self
determination of peoples, the United Nations shall promote -- higher standards of living +
solutions of international economic, social + health + related problems.
--These also included a universal respect for + observance of human rights + fundamental freedoms.
General Assembly/member states initiate studies in promoting international cooperation, social
cultural, e.t.c., e.t.c.
Robertson says these are not OBLIGATORY standards; should' matter, though, not designed to
perform a utopian legal field.
Role of the UN is NOT to create heaven on earth -- it's to "prevent us from going to hell".
Certain obligations elsewhere -- e.g, UNSC. When it comes to economic targeting or poverty
reduction, these are declaratory intentions -- the U.N does not necessarily act upon this.
e. g Article 55 -- but the "self determination of peoples" is NOT declaratory; that's an internationally
accepted as being a "fundamental principle of law". The two sort of mingle; elements are binding.
The UN's ability to achieve it's charters are more difficult later on -- "higher standards of living, full
employment, e.t.c.". MIX OF ASPIRATIONS, GOALS & AIMS.
MOST IMPORTANT IS THAT THE UN CHARTER STILL AFFIRMS TO THE RIGHT OF
SOVEREIGNTY IN ARTICLE 2 -- THAT STATES ARE STILL SOVEREIGN.

Many will argue that the "state is our problem", a "monster" that we have to deal with. But there is no
way to simply "rid yourself' of a state"; therefore, the UN charter claims each state is "equal and
sovereign." -- and therefore later on encourages matters like cultural relativism to be impeded?
Makes it illegal to resolve disputes by means of aggression (either state against people or people
against state, state v.s state.) (Article 23)
There are certain exemptions; when you are under attack, e.t.c.
Body responsible for authorising intervention is the UNSC -- e.g, Rwanda. "The strongest institution
in the UN, but will only authorise the use of force in certain circumstances."
-- ONLY AUTOHRISED IN CIRCUMSTANCES DEEMED AN INTERNATIONAL THREAT TO PEACE
& SECURITY; think, Rwanda, Holocaust. For example, Syria -- does UN authorise force? Only if
conflict threatened all other countries too.
International Law comes before all else; Fuji v. California, 1950; held that the Alien Land Law of
California had to yield to the Charter of the UN.
-- THAT SAID, it's extent is determined by it's member; no obligations to uphold the charter per se.
Robertson: made human rights a matter of global concern despite all the UN's problems. BUT did
not impose any legal duty on member states to comply w. human rights standards.
UN limited, esp w. UNSC; means for intervention needs to fit certain criterion.
-- This case illustrates how the UN's charter might be seen as obligatory; how it might have the
force of international law & therefore BINDING.
1950 -- Fujii v. California. Alien Land Law of California ; judges saw it important that this domestic
piece of legislation had to comply to the UN's Charter. (Japanese man had difficulty purchasing
property in the State of California.)
-- extent of it determined by members and while there are no obligations to uphold the charter, per
seeee.
Admittedly, an aberration, but it can have local ramifications.
-UDHR: reiterate natural law sentiment from 1948.
"Aspirational again", says Robertson, "but was imperfect." (CAH around p. 55) Aspirations may be
considerable but "well respected" -- many many states have attempted to introduce domestic
legislation to mimic this. (ratified; e.g, Aus had to adopt the International Criminal Court.)
Article 28: Evreyone is entitled to a social + international order in which the rights + freedoms set
forth in this Declaration can be fully realised.
(E.G; Australians don't accept international law until it's ratified in Commonwealth/national law.)
--International Covenant of Civil and Political Rights in 1966 v.s International Covenant on
Economic, Social & Cultural Rights in 1966; WHICH IS MORE IMPORTANT?
- How do you juggle these entitlements? What is more important? Can it be remedied?
- Think of the US + the USSR.
--

Rights might be misunderstood - NOT immunities, NOT powers.

E.G; it's a privilege/liberty that your MP listens to you.
Parliamentarian has a non-liberty for you to be heard; she can receive the item but she doesn't have
to do anything.
Underetanding how rights are effective entails understanding what you are.
{HOHFELD}
AS WE DON'T HAVE a proper bill of rights, certain things aren't allowed; only allowed to
communicate on free speech as a liberty, freedom to speak to people on political matters (minimal
scope.)
--What is a right? It's a CLAIM -- legal scholars say it's something "you possess." Can't TRANSFER;
only you can have it.
"Rights" are claims enforceable by law as defined by lawyers -- therefore, liberties are not an option;
when it comes to freedom of speech, difficult You HAVE something to claim (comes back to the
property) & can be asserted by law. (Comes back to Hohfeld too.)
You expect the STATE to enable you to protect a person's "right" -- a valid claim on society to protect
him in the possession of it, either by the force of law." (J Mill.) [like the sociaal contracting mentioned
by Hobbs + Locke?]
--WESLEY HOHFELD 1879
HOHFELDIAN INCIDENTS -- analyses what rights are; calls them "claim rights".
Says there are varied human relationships and rights; teacher has rights, liberties, limitations,
disabilities, when it comes to students -- has the liberty to expect you to study, NOT the right.
IE; unconventional rights.
LIBERTY/PRIVILEGE -- SOMETHING YOU EXPECT.
CLAIM -- A PHYSICAL POSSESSION.
POWER -- SOMETHING YOU CAN ENACT EITHER NO YOURSELF OR OVER. ALTERS THE
LEGAL RELATIONSHIP BETWEEN THE PERSON WHO HAS IT AND WHO SUFFERS THE
CONSEQUENCE OF THAT; E.G, COMPULSIOn.
JURAL CORRELATIVES:
Right and Privilege; similar but not the same thing.
Privilege and No-right; parliamentarian can't tell you not to send a letter, they just won't
acknowledge it
Power and Liability (imposition of power, and the liability of it on another)
Immunity and Disability (she's free from not being sued -- the queen -- and we're not entitled to.)
--Privilege: if you find something on land. I can only keep it if I don't have a duty to avoid it altogether
-- e.g, if it isn't minerals or something, in which case you're not entitled to have it -- because it's for a
better good? ALSO a privilege to send a letter to your PM; they have a no-right to acknowledge it.
HUMAN RIGHTS is more often about IMMUNITIES and DISABILITIES and POWERS.
Government may be disabled from doing certain thing to us; if Australia operates outside it's
constitutional power, it's illegal ;parliament cannot force people to be vegetarians, par example.

Claims; entitlement to claim wages is a claim right. Employees have a claim that an employer pay
him or her wages.
Power -- a ship's captain has the power to order a midshipman to scrub the deck; changes the
sailor's situation; imposes a new duty upon him and so annuls his non-right.
Immunities; Aus Parl cannot force people to become vegetarians b/c the Aus gov't lacks the ability to
alter the legal relationship of Aus cuts in that way
--

A person who says to another I have a

right to do it is not saying that it is not
wrong to do it. He is claiming that the
other has a duty not to interfere (J. Raz,
Ethics in the Public Domain, Oxford:
Oxford University Press, 1994, 275) -variation upon these rights, Hohfeldian
analysis.
Rights, in short, are entities we can
possess, what we have.
CRITIQUE OF RIGHTS:
Glendon said "our rights talk in it's absoluteness promotes unrealistic expectations, heightens
social conflict + inhibits dialogue that might lead toward consensus." -- NOT A MEAN OF
SOCIAL CONVERSATION; ENDS IT RATHER THAN CONTINUES IT.
Mind -- where there are rights, will be litigation.

ARENDTIAN CONCEPT OF HUMAN RIGHTS: CAN ONLY STEM FROM A POLITLCA

COMMUNITY. Bentham would back this up, too; doesn't believe it's "born within us."
Emergence of humanitarian law & law of war; conventions began to evolve for rights of noncombatants, e.t.c. (check out Robertson's chapter on laws of war?)

POWERPOINT FOUR
RECAP: "every rights relationship complemented/supplemrnted by a series of other rights
relationship". - e.g Hohfeldian rights, claimed against someone else.
'Overemphasis on human rights causes us to cease to develop -- insular -- creates a skewed
impression of realising other things, such as obligation. Can't appreciate a right w/o
understanding where the obligation comes from."

 Our rights talk, in its absoluteness promotes

unrealistic expectations, heightens social
conflict, and inhibits dialogue that might lead
toward consensus, accommodation, or at
least the discovery of common ground. In its
silence concerning responsibilities, it seems
to condone acceptance of the benefits of
living in a democratic social welfare state,
without accepting the corresponding personal
and civic obligations. In its insularity, it
shuts out potentially important aids to the
process of self-correcting learning. All of
these traits promote mere assertion over
reason-giving.
For example, can we understand the rights of a child w/o understanding the obligations of the
parents?
Rights not a means of social conversation -- needs to be held "in line" with a "whole series of other
issues of discussion". Where there ar rights, there will be litigation. (Glendon) -- Talking from a
litigious perspective, e.g, how to sue, where to be sued. Doesn't properly examine it in terms of say,
Hohfeldian rights, but does it "spoil" us -- does it give us a chance to be OVER entitled? Litigation
that protects us might also mean that we skewer away from the obligations we owe to the
community, to human nature.
Richardson, post-Watergat: "Obligations transcend rights." Responsibility takes priority over justice
-- DEPENDS UPON WHO IT IS, I SUPPOSE ?
HAVE TO BE RESPONSIBLE BEFORE YOU ARE JUST -- A J Milne, 1968. (Mostly over
governments.)
Janowitz -- "Citizenship a balance between rights and obligations."

Ultra, rights-based individualism

may have its own detrimental
consequences: -- i.e, if it's
litigious it'll get kind of crazy.
Aus: focuses on specific areas,

not on a whole.

-- WORLD ORGANISATION:
"Human rights can only be obtainable at a global level in very limited ways.
GLOBAL EMPIRE v.s UNIVERSAL EMPIRE is diff;some believe a universal empire looks like an
imperialistic project. cultural relativism?
IMMANUEL KANT: "WORLD CITIZENSHIP" also spoke of the possibility of a WORLD
GOVERNMENT. (Also spoke about international morality in the 18th C).
*look up that hedonistic morality.
Law of Federalism: "Commonwealth, states, local -- municipalities." He thought of a global regime
with "breakdowns" -- separations, different bodies, e.t.c, a head e.t.c that moves on.
Federalism also allows a constructive of republicanism; i.e doesn't have a monarch, but
involves a DIVISION OF POWER; a check and balance (what our system is MEANT to have.)NO
rubber stamps. you have gate holders!
For example, in Australia, our executive arm has enormous powers B/C the executive is effectively
in power: this is NOT following the rule of republican.
REPUBLICAN MODEL: president/prime minister is separate.
-- World Organisation:
League of Nations came out of the end of WW2 -- some believe it wasn't intended as a "world
government" -- that it was limited in world governance, whereas others argue it wasn't given enough
power to "fulfil it's mandate/duties". (Can there be a global international legal system w/o the
power of punishments ? UNSC is still limited, after all.)
W/O the power to back up force, it's pointless.
"Call for government, also a call for tyranny." -- CULTURAL RELATIVISM, IMPERIALISM, AN
"IMPOSITION".
Some prime ministers argue that it should be a selective member of the U.N -- why?
--During WW2 -- "one unified/indivisble world" -- by republican presidential nominee, Wendell
Wilkie. (1943). (Nominee: 1940.)
"An internationalist".
LON not strong enough: did not have enough resources and did not have enough effective
sanctions.
"Best way of peace is through world government" -- best way to observe human rights is not to allow
states to do what they want, but to have one world government.
-- This led to the unified world, single political system, e.t.c.
-CHALLENGES THE WESTPHALIAN SYSTEM (1648, ended the Thirty Years War, Westphalia

Treaty): each states are "equal and sovereign" -- protected under UN Charter, Article 2. "NO STATE
SHOULD INVADE THE OTHER WITHOUT GOOD CAUSE."
Also that states are the supreme right bearers in the international system. STATE -- "only truly legal
competent being."
E.G; SOVEREIGNITY IN A UNIVERSAL SYSTEM MEANS THAT IT'S SURRENDED UP TO A
SUPER/SUPREME GOVERNMENT.
Australian states claim that their sovereignty is impaired because the Commonwealth has invaded
their legislative power.
World government also considered "undesirable" -- Kenneth Waltz; "creates permanent conflict/
permanent civil strife." Would promote wars B/C international laws might not be in allegiance/allied
to what a nation/state would want.
CAN IT BE DEMOCRATIC ? "Impossible" v.s "global governance should be organised
democratically" (Young, 2000).
example of a unified/international body; European Union demonstrates how it's not very
democratic; while states have veto powers, a legislation on what's appropriate in sausage
meat and how much may be considered "meat. EU once passed restrictions on this, but this
isn't a "democratic" measure -- it's "government by decree", whoever decides the most.
Depends on which part of the EU it's operating from.
Comparison: US govt can't tell the states to abolish the death penalty; the EU can.
-*Have a series of loose organisations that involve the U.N but we have a series of other bodies, e.g;
the UN Health Organization, World Bank, International Monetary Fund. IE: they ARE looser.
Slaughter (2004)- "World government w. teeth is undesirable" -- having it is impossible so we're
wasting our effort; we should focus on "forms of collected organisation -- regional governments,
regional bodies like the EU, but looser -- states to be disaggregated & networked; can't speak of
these states AS states, but they're parts of a global unit that aren't uniform in any way. IE: we should
just attempt to advance the models we have now and try to incorporate degrees of corporation
through various levels -- "information, enforcement & harmonisation networks."
-- Schmidt (1888 - 1985). NAZI SCHOLAR.
Idea of international morality policed by the LoN using sanctions, punishing states, e.t.c, is
"dangerous".
Global government; global police force, you are ENCOURAGING wars. it's like police encourage
burglars. Presence aggravates ? Rhetoric could be applied to drug users. ENCOURAGES
violations.
Schmitt proved in this: the League of Nations failed and a world war broke out -- the League's
intention to prevent war DIDN'T WORK.
Schmitt: "if you give a body sanction making powers; the power to wage war, e.t.c, you are
encouraging conflict and not stopping it."
Are humanitarian conflicts ever feasible & enforceable? Schmitt doubts that.
--UNITED NATIONS:

Began in World War 2 in an alliance against Axis powers by Roosevelt, e.t.c. (1939 - 1945.)
Victors of WW2 would create a system of "governance" -- not government, but governance centred
on the United Nations.
Dumbarton Oaks & Yalta Conference in 1945 to determine outline of post-war World organisation.
Created centrally -- the UN Charter, the UN Security Council.
Victors of World War 2 would be the key founding members of the UN.
'
The US would be present in the UN -- key guiding members, has ENORMOUS POWER; even
though the US has done a lot to undermine the U.N, he has a lot of power and it's better to have the
US IN the UN rather than out : it's, in a way, a threat.
-CRITICISM:
"John Birch Society" & the "Get US out of the UN" campaign. (1959)
^ Anti-communist society.

The UN is at the hub of a global

network working to submerge
the independence of all nations
in a world government controlled
by the elites

-- example of how global governance is NOT considered a popular idea at all (JBS formed after a
pilot gunned down in the Korean war.)
WHAT'S more effective -- global governance that's "looser" like A Slaughter & a system of
individual agreements made between states?
de Gaulle: "UN imprecise in role and function." A fabrication; a fiction. Impossible to see what it is -DECLARATORY RIGHTS, vague, not specific enough to actually enact any kind of proper policy.
de Gaulle "Only way you can have effective rights is through treaties." (Bentham & Slaughter would
agree w. this.)
"Complex internationalism" -- we MAY need international organisation, but should also have strong
interstate relationships, a la Westphalian?
-- UN NOT A WORLD GOVERNMENT:
States remain sovereign -- Article 2 makes it clear; Westphalian state sovereignty DOES STILL
EXIST.
DOES NOT MAKE LAWS PER SE; quite often it's declaratory. Other arms -- e.g, the UNSC is able to
make laws -- can establish international criminal court, e.g ICTR & International Criminal Court in
former Yugoslavia. UNSC not a law making body, but it has law making effects. As part of it's
security measure, laws may "well be made."

UN says laws are binding; CAN'T create binding obligations -- able to declare them, but doesn't
have the power to uphold them save in strict circumstances,
"Equality" -- doesn't matter about size, population, differing political views, e.t.c; all member states
have a voice & a vote, although there are dynamics to this. e.g; Nairu may not have equality.
HOWEVER still has member states willing to "play along" -- e.g, US doesn't "pay it's due" -- it's like
being in a "club" -- you have to come to the table, e.t.c, and the U.S doesn't really want to pay; still
owes the UN upwards to a billion dollars, probably in relation to warfare, taxes, e.t.c.
-- UN : series of organisations within an organisation.
Various roles -- PRIMARY one is human rights. SECOND: has goals and objects, but they're quite
declaratory.
Guiding principle is in the UN Charter. E.G; will determine WHEN the UNSC intervenes but also
states the legal categories & status of states -- THE WESTPHALIAN IDEA.
Those who sign the charter have binding obligations, although the UN can't quite hold them to this.

Article 1(3): To achieve international

cooperation in solving international
problems of an economic, social,
cultural, or humanitarian character,
and in promoting and encouraging
respect for human rights and for
fundamental freedoms for all without
distinction as to race, sex, language or
religion;
Robertson: charter makes human rights a matter of global concerns but does not impose any legal
duty.
E.G; Millenium goals & poverty reduction goals -- member states are not NECESSITATED to attempt
to see this occur.
HOWEVER the UN did limit the obligations to a "certain set of functions" in the UN in relation to the
UNSC -- "only allowed to intervene in case of violations that are a danger to international peace &
security."
Guiding legal document is the Charter -- but nonetheless, binding declarations are necessary
for each member state. BUT the obligations are limited to a certain set of functions in relation
to the UNSC: makes human rights a "matter of global concern" .. but "does not impose any
legal duty on member states to comply".
What happens when an offending member state doesn't meet this? what're the sanctions?

All Members shall refrain in their

international relations from the threat

or use of force against the territorial
integrity or political independence of
any state, or in any other manner
inconsistent with the Purposes of the
United Nations (Art 2(4)) THIS &
SOVEREIGNITY THE BIGGEST
THINGS IN THE UN CHARTER.
Force should ONLY be authorised: the only ones who can authorise it are the members of the UN
Security Council is otherwise . GENOCIDE is not necessarily a breach of international peace and
security and therefore may not actually be properly examined or taken care of -- therefore, what DO
we call international aid?
EG Rwanda: "was" an international threat but no intervention occurred.
UN'S measures are v varied as per Chapter 7 -- can be creating tribunals, freezing assets, travel
bans, e.t.c. ONCE the UNSC has determined there's an international threat, they may take ANY
MEASURES NECESSARY. When there's the will to intervene in the UNSC, it can be VERY strong.
UNITED NATIONS OUTLINE:
-- General Assembly in NY. 123 members. (matters that concern world nations.) NO BINDING
POWERS.
-- Security Council/NY -- resolution is BINDING. HAS THE POWER TO ALTER THE LIABILITIES OF
OTHER POWERS.
-- EcoSoc COUNCIl -- e.g, matters of poverty reduction, but NO BINDING THANGS.
tRUSTEESHIP cOUNCIL/NY -- "former colonies still regarded trustee territories."
Secretariat /NY. (some say it's weak)
International Court of Justice (ICJ) Netherlands. "Top legal body determines what rules are and how
they operate." When one state takes a claim of a dispute with another claim to he state thte ICJ, who
determines what's to be done. BINDING.
-- Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon
the parties concerned. Article 94 of the United Nations Charter lays down that "each Member of the United
Nations undertakes to comply with the decision of [the Court] in any case to which it is a party".

SECURITY COUNCIL:
FIVE PERMANENT POWERS: US, CHINA, RUSSIA, UK & FRANCE. "PERMANENT". Some believe
it's not a proper representation of power -- India, par examplee, wants to muscle in. (veto: only one
of them can veto in to prevent a resolution being passed.)
China & Russia have vetoed action on Assad's regime before. ONE veto and everything is undone.
ten NON PERMANENT MEMBERS WITH 2 YEAR TERMS. NO VETO POWER. ROTATES.
"Wider representation initially included 6 rotating members w voting rights though no veto power."
Founding members & have veto power.

--Veto bad when it comes to state rights: state will put their rights first & states will see their
relationships w other states as permanent; e.g, China will never / rarely authorise the use of
intervention in a country that's occupied bc THEY use force to occupy other countries. A kind
of politicisation.
STATE RIGHTS vs HUMAN RIGHTS present here.
BUT if you don't have the veto power, states will be creating "mischief outside". If you don't have veto
power in the UNSC is that they'll create "trouble" outside the UN (Bosco,
"Far better to have someone in your tent pissing it out, or someone outside your tent pissin in" or
basicallyy, you want the questionable guys on your side.
UNITED NATIONS SECURITY COUNCIL PROPERLY:
International law & rights; John Austin positive legal theorist "Since there is no hierarchy of
noticeable power in the legal system -- no policeman -- technically speaking, there is no
international law (as it can't be upheld!) Belives in a command theory -- law does not exist unless sit
can be enforced. So does international law actually exist?
The SECURITY COUNCIL is a kind of policeman, so it remedies Austin's concerns; it's edicts are
enforceable.
Some states DO exist the enforcement of laws. "Custom" & "customary approaches". Even the
Westphalian system -- a situation with law.

Through its own resolutions and through its

created bodies the International Criminal
Tribunals, it has contributed to international law
recognition and non-recognition, the law of
treaties, state responsibility, -and international
administration of territory.

Resoltuions of the security council & the general assembly constitute legal-making features
(Higgins, 1963.)
Security Council may create international law through it's mechanisms -- e.g, created through treaty
when all the countries come together and make an agreement about the immunity of diplomats (e.g,
the Vienna Convention) then it's accepted by ALL states that diplomats have immunity as they
perform their tasks. E.G; had the Britishg one in to get Assange from Ecuadorian embassy, would
have been a violation, and then the Ecuadorians could have done the same to the British -- THIS IS
WHY STATES ACKNOWLEDGE THEIR ENTITLEMENTS FROM ONE ANOTHER. "Mutual
deterrence".
Through state behaviour (e.g; custom).
Through legal decision (ICJ, ICC.)
International law can be directly altered by the actions of the Security Council.
-Australia attempted to win a seat: "Horta said "Australia's civil rights record & engagement
demanded that it should be recognised by the UNSC" and by having an Australian presence would
be good for Asiapacific region.

Gillard: "Could bring a perspective that others couldn't --. e.g. Luxemborg." (2012)
BUT having a membership in the UNSC not enough; doesn't have a veto power; tend to follow
countries like UK & USA. So there's no point in it!?!?!
-- "Non-council member states."
Can participate, but have no veto rights & no voting rights. SC -- inner layer of membership, rotating
memberships, and then non-council members.
-- UN/ SC & REFORM
What would make SC more representative & fairer?
2004 Panyarachun Report suggested expanding the SC (the PP?) to 24 members. More
representation means there are wider voices; a more equitable way of considering matters.
Resoltuion difficult to pass though: 24 members might make it more difficult.
2005 G4 (India, Brazil, Japan & Germany) -- get another permanent seat not necessarily with a
veto power, and four new non-permanent seats. One for a great power w/o veto power.
REFORM REQUIRES 2/4 SUPPORT FROM MEMBERS WHO VOTE ON THIS RESOLUTION.
GENERAL ASSEMBLY: NY
Deliberative organ, passes resolution. NO legally BINDING POWER.
UDHR (1948) came from their deliberations.
Admits new members/member states. Each me,bees has one state.
Deals w matters of budgets for peace keeping arrangements.
Deliberates over "key matters" -- e.g, declaration over slavery Not necessarily binding, but ICC
would regard any declaration from the General Assembly representative of the general nations of
the earth, as international law.
GENERALLY SPEAKING, IS DECLARATORY.
Makes recommendations, requires 2/3s majority votes.
e.g Arms Trade Treaty -- passed by resolution, now needs to be ratified. Question is whether it's to
be effective is demonstrative of international law/human rights porlbem; arms trade tries to regulate
illicit trafficking of arms Tries to make it cleaner, not stamp it out -- "can't sell to criminal gangs,
terrorists, e.t.c" (how would even ENFORCE this?) open for signature from 3 june 2013. NEEDS
ratification; needs to see who upholds it. Indians won't sign it -- net importers. (Around 114
signatories so far.) Russians export it; net exporters.
SECRETARY GENERAL: Effectiveness varies. "Too effective" general means the S-G is "curbed" of
it's powers.
eg Kofi Annan 1997-2006; advocated rule of law -- influence and authority of law within society,

1. The government and its officials and agents as well as individuals and private
entities are accountable under the law.
2. The laws are clear, publicized, stable and just, are applied evenly, and protect
fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered and enforced is
accessible, fair and efficient.
4. Justice is delivered timely by competent, ethical, and independent

representatives and neutrals who are of sufficient number, have adequate

resources, and reflect the makeup of the communities they serve.
, Millennium Development Goals, encouraged international cooperation.
LOOK UP THE INTERNATIONAL CRIMINAL COURT.

POWERPOINT FIVE
* Revision of GENOCIDE, CONVENTIONS, E.T.C
Look at TORTURE: Convention Against Torture -- "CAT" -- most important.
GENOCIDE: unsure what's in it, and what's not in. Article 2 of UN Genocide Convention;

deliberate and systematic

destruction, in whole or in part, of an
ethnic, racial, religious or national
group;
* remains questions as whether there should be CULTURAL and POLITICAL definition. USSR
doesn't like this, whatsoever.

Article 1, UN Genocide Convention:

The Contracting Parties confirm that
genocide, whether committed in time
of peace or in time of war, is a crime
under international law which they
undertake to prevent and punish.
Article 1 of the Convention
establishes the crime of genocide in
times of war or peace.
HAS TO BE THE MENTAL STATE TO WANT TO DESTROY SOMETHING; HAS TO BE
CALCULATED. After you've cited a law, be sure to apply it: e.g, Article 1-- talk about how the intent
has to be the ONLY REASON for this harm: has to be BEYOND REASONABLE DOUBT.CAN be a
war crime/crime against humanity but only genocide if there's an intent to harm.
No reason why it has to be ALL of a race or A CERTAIN NUMBER. SPECIFIC ACT must identify
individual in term of characteristics; NOT NEGATIVE.
Definition is imperfect; there can be cultural genocide & political genocide -- items we need to
consider.

Under Article 2 of Genocide Convention, the most important thing is the intention; also the most
difficult thing to provide.
--HYPOTHETICAL XANADU: ETHNIC VIOLENCE THAT ARISES FROM CLASHING RACES.
LOOTINGS, KILLINGS BREAK OUT.

Felix Francis is president of Xanadu, a distant Pacific

Island, once a British colony. He has ruled for 24
years, but the local populace is getting testy. It is
historically divided between various Melanesian
groups. However, over the years, an increased
number of Chinese businesses have sprung up,
courtesy of economic changes made by Francis.
Francis fears he might be making mistake. Riots
start to take place. There are a spate of killings and
lootings. The Chinese population figure prominently
in these. A few of Francis commanders are
involved. The official radio station is also releasing
threatening broadcasts. Chinese Xanadu
community leaders are wondering what might be
done. Are there any options open to them?

Genocide: what were the acts here?

Art 2, UNGC should be consulted
Is there a co-ordinated/systematic effort
to carry out the acts?
Is there need for a war? No.
Is President Francis responsible?
(proving mental state for killing a
problem. Not a problem for the
commanders, perhaps. But there must

be an identification of the characteristics

of the Chinese in this that warrants it as
genocidal
There might be command responsibility
Under Article 2 of Genocide Convention, the most important thing is the intention; also the most
difficult thing to provide.
Crimes that might constitute a basis for intervention: if there is violent unrest in the country & it
constitutes sufficent threat to international security, UNSC might step in.
Occasionally regional arms, e,t.c., different teams that can step in; e.g, the ICTR.
ICC could also step in.
UNREST + ELEMENTS INVOLVED: MENTAL STATE, SEE IF THEY'RE "SATISFIED" . NEEDS TO
OBEY ARTICLE 2 OF THE UN GENOCIDE CONVENTION. (MENTAL STATE FOR KILLING
REMAINS UNCLEAR.)
*CIVIL UNREST CAN ALSO BE GENOCIDE; WHAT DOESN'T MAKE IT GENOCIDE IS THAT YOU
CAN'T TELL WHAT THE INTENT IS -- IT ISN'T CLEAR, OR AT LEAST THE INTENT IS HARD TO
INFER. E.G; THE DEATHS MIGHT JUST BE "ACCIDENTAL" -- THEY'RE KILLING PEOPLE TO GET
FREE FOOD, BUT THEY DON'T MEAN TO KILL THEM BECAUSE THEY'RE CHINESE. THEY
MIGHT IN FACT BE DESCRIBED IN A "NON-" CATEGORY; "NON-POOR".

NEEDS TO BE THE ONLY THING THAT HAS

ARISEN HERE. ALWAYS NEED TO USE ARTICLE
2, UNGC.
Xanadu: also a problem of identifying factors so therefore you're unsure IF it's genocide -- are they
being killed because they're chinese, or because they're too rich?
LOOK AT what acts are relevant to genocide, what do the events constitute, is there a systematic
effort, can you prove the mental intent was it planned, was it set -- e.g, in Rwanda; part of a
"strategy", timed.
EASIER TO PROVE IF YOU CAN SEE IT AROSE OUT OF A SYSTEMATIC EFFORT. HARD TO
PROVE WHEN ELEMENTS OF THE STATE HAVE BROKEN OFF, PEOPLE HAVE GONE RAGUE.
Is President Francis responsible? "Command responsibility." Might be said he's responsible, if
his intent is fitting.
--Genocide: can be expansive at times.
Question when there are spates of ethnic violence when there's communal strife: difficult to prove a
systematic nature or a mental state associated with it. "Economicide" probably does exist, e.t.c, but it

doesn't fall into under article 2. ARTICLE 2 is the norm we use to define genocide by, but it IS v
imperfect. DOESN'T mean that there are other crimes against international law/humanity, but it
doesn't mean it's genocide.
Rampages, pillages, looting; Genocide Convention lists causing serious bodily or mentally harm as
potentially genocidal, yes. Applying Akayesu; he was held responsible here.
-XANADU --

Concept of the plural society in which

various social or ethnic groups are
competing for resources of power &
money, which makes them by their very
nature rife with inequalities (in the
political, economic, cultural and social
spheres). Discrimination is often rife (not
only in individual prejudices) in
institutional processes such as education
and employment these structural
conditions are likely to be conducive to
genocidal conflict - Germany prior to
WW2.
Applicable in this case: Chinese
immigrants competing for resources
Are there ways of stopping it? international remedies?
International remedies -- the UN & THE UNSC.
Might be regional organisations, but they don't have anything on the lines of the ICTR. (EG;
Australian Pacific Economic Council.)
EXAM: need to determine if an act satisfies the necessary elements of genocide (THE THREE
ASPECTS, AS PER UNSC ART 2.)
RAPE CONSIDERED GENOCIDAL BECAUSE IT PREVENTS THEM FROM HAVING FUTURE
CHILDREN, ALSO BECOMES OUTSIDERS.
*PEOPLE CAN CREATE THE MINDSET TO HATE OTHERS IN VARIOUS WAYS; IT DEPENDS ON
THE "CIRCUMSTANCES OF THE CASE".
--

Look at different types of genocide; Binoy will be 'pleased' if you mention other genocides that can
satisfy these definitions -- e.g there might be an unequal disitrbituion of power, money, e.t.c, and
violence often occurs here. --> PLURAL SOCIETY.
-IMPORTANT TO REALISE GENOCIDE MAY BE PART OF THE LAW OF A COUNTRY OR MAY BE
PART OF THE INTERNATIONAL LAW OF A COUNTRY THAT NEEDS TO BE RECOGNISED; E.G
IT MAY NOT BE NATIONALLY RECOGNISED.
-- eg Australia, genocide law needs to be ratified. (Nulyarimma v. Thompson). (didn't win because it
wasn't part of Australian common law.) No statute to consult: no genocide. DIVISON between the
case: minority judgment said that genocide forms the common laws -- a "jus cojens" law; cannot be
ignored, immutable. That was the "dissent". Decision of Whitlam & Wilcox JJ won out. Genocide
therefore NOT crime.
Dissent: Merkel J -- considered a "higher law.", jus cogens.
Dissenting judge; Whitlam & Wilcox; "no intent to commit genocide."
-- INTERVENTION, E.T.C.
E.G The UN; tension. ARTICLE 2 respects sovereignty and outlaws the use of actual or threatened
force. QUALIFIED by chapter seven, though: chapter seven dictates when the UN/UNSC will
intervene -- when there is threat to international security. (provided there is no veto.)

The Security Council shall

determine the existence of any
threat to the peace, breach of
the peace, or act of aggression
and shall make
recommendations, or decide
what measures shall be taken in
accordance with Articles 41 and
42, to maintain or restore
international peace and
security: Art. 39, UN Charter
(Chapter VII)

E.G The UN; tension. ARTICLE 2 respects sovereignty and outlaws the use of actual or threatened
force. QUALIFIED by chapter seven, though: chapter seven dictates when the UN/UNSC will
intervene -- when there is threat to international security. (provided there is no veto.)
WIDE scope of intervention.
MAY CREATE INTERNATIONAL TRIBUNALS.
ALSO HAS INTERNATIONAL CRIMINAL COURT: International Criminal Court(commonly

referred to as theICCorICCt)[2]is a permanenttribunalto prosecute individuals

forgenocide,crimes against humanity,war crimes, and thecrime of aggression(although
jurisdiction for the crime of aggression[3]will not be awakened until 2017 at the earliest).[4][5]
The ICC was created by theRome Statutewhich came into force on 1 July 2002.[6][7]The
Court has established itself inThe Hague, Netherlands, but its proceedings may take place
anywhere.[8]It is intended to complement existing national judicial systems, and may only
exercise its jurisdiction when national courts are unwilling or unable to investigate or
prosecute such crimes.
Currently, 122 states[9] are states parties to the Statute of the Court, including all of South America,
nearly all of Europe, most of Oceania and roughly half the countries in Africa.[10] A further 31
countries,[9] including Russia, have signed but not ratified the Rome Statute.

The ICC has been accused by many, including theAfrican Union, for primarily targeting
people from Africa; to date, all the ICC's cases have been from African countries.[18][19][20]
[21][22]Four out of eight current investigations originate, however, from the referrals of the
situations to the Court by the concerned states parties themselves.[23]
-- TORTURE:
"Difficult & complex" because of issues like the dirty bomb scenario. WHAT should a person do?
Getting a "torture warrant" to legalise this is difficult; just takes too much time!
Some "torture universally condemned & criminal".
Others: "it is inevitable. However resistant we might be we'd still use torture if the circumstances
warranted it's use."
Argenitinian in the 1920s; would normalise the routine of torture; torture the sympathisers/droppers
e.t.c -- torture them during the day and mentally toruend, and then they'd be treated well and taken
out to dinner: given suits. "Normalised". Also, just fucked. Hard to get a handle on. I wonder how
that feels? (Perhaps Imogen does this? Take the torture away and people will beg to see it.)
"Age old instrument of state".
Been condemned -- way back from the fifteenth century, "use of torture places us on the road to
hell." Demeaning yourself, not just the individual. "Reciprocal arrangement".
Specific acts -- might be psychological, might not be.
"Merely the legal designation of an event or behaviour, based on the comprehensive assessment of
this event or behaviour." Used to be called "enhanced interrogation."
Conflicting definitions of torture: He prefers the 1948 convention against torture. Any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person, information or a confession, punishing him for an
act he or a third person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.

Geneva -- issue with this definition is that it doesn't define what a prisoner of war is ; what constitutes
this? if you're not deemed a prisoner of war, then you can be put in Guantanamo Bay -- think of Abu
Ghraib. "Redefinable."
Further Definitions:
Article 7 --

No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without
his free consent to medical or scientific
experimentation (Art 7, ICCPR)

The Covenant does not contain any definition

of the concepts covered by article 7 nor does
the Committee consider it necessary to draw up
a list of prohibited acts or to establish sharp
distinctions between the different types of
punishment or treatment; the distinctions
depend on the nature, purpose and severity
of the treatment applied: Committee on Civil
and Political Rights, General Comment No. 20
on article 7 of the International Covenant on
Civil and Political Rights, para 4

NATURE, PURPOSE & SEVERITY are how they'll determine WHAT torture is. Committee is
reluctant to determine what torture'll be, because it doesn't want to restrict behaviour that might be
constituted as torture on one hand; might incorporate a range of behaviours, nonetheless.
ARTICLE 5 OF THE CAT: RIGHT TO HUMANE TREATMENT:
Similar to the International Covenant of Civil & Political Rights; fits in to these rights.
CAT -- UN Document. (1984).
Geneva Convention -- limited because of POW declaration.Also ARTICLE 5 has limitations.
Others have their weaknesses.

 No one shall be subjected to torture or

to cruel, inhuman, or degrading
punishment or treatment. All persons
deprived of their liberty shall be treated
with respect for the inherent dignity of
the human person (Convention
Against Torture and Other Cruel,
Inhuman and Degrading Treatment,
1984)
ISSUE WITH THE C.A.T; doesn't render/return someone to a state where there are substantial
grounds for believing the person would be subjected to torture.

Art 3 bans returning,

extraditing or refouling a
person to a state where are
substantial grounds for
believing that he would be in
danger of being subjected to
torture. (applicable on a
regular, daily basis.)

-- e.g, think Julian Assange to some level. FOR EXAMPLE: fugitive in Australia then
extradited to the U.S. IF THEY'RE GOING TO FACE THE DEATH PENALTY, THAT FEELS
WRONG. IT WOULD CAUSE CRUEL & INHUMAN TREATMENT. RECIPROCAL: HAVE TO
BE PUBLISHED FOR YOUR CRIMES HERE IN A SIMILAR/THE MOST ACCEPTABLE WAY
AS YOU WOULD THERE.

Rome Statute, International Criminal

Court, 1998 on torture (actually set
out by the ICC)

 Article 7: the intentional infliction of

severe pain or suffering, whether
physical or mental, upon a person in
the custody or under the control of
the accused; except that torture shall
not include pain or suffering arising
only from, inherent in or incidental to,
lawful sanctions. ACTUALLY LAYS
OUT WHAT TORTURE IS HERE -"intentional inflict"

"Most interesting definition." Provides an outline of what might constitute torture. Here, torture is
defined as "intentional infliction of severe pain." INTENTIONAL -- like genocide; you need to show
the mental element present in torturing someone whose in their custody or under their control.
- Nature of the act, intention of the perpetuator, purpose; quite often, the involvement of public
officials/designated agents.
WHAT QUALIFIES? -- US Secretary Rumsfeld didn't think "enhanced interrogation" wash't torture;
hit the body, but?
"War on Terror" -- water boarding, simulated drowning, caused conflict & debate on whether it's
interrogation or not. Bush accepted this.Is a public official involved? Who's doing it -- what's it FOR -what's the "purpose"? Acts are never straightforward; who's doing them? Quite often, torture's
outsourced. Now gone to security groups, e.t.c, privatised groups -- or get your allies to do it for you.
EG the Jordanian secret police can torture your suspects for you! (Make this a slogan, printed in
happy bubble text on dark black shirts.) Can be a witness to this. Australian officials been present to
torture situations. (Wuite a dark thing; people always want to see the murders, want to watch how
people die, and withholding the images of torture -- like Bryan Singer does -- only emphasis your
innate warped nature. Think of Utopia.)
"Silent participant." // Church did this too! -- priest does not ever "sully his name"
-- TORTURE CAN ALSO INCLUDE OMISSION:
-- CAN DEPRIVE A PERSON OF LIFE/FOOD (echoes genocide.)
E.G; Denmark against Greece in front of the EU Court of Human Rights; individual kept in prison,
deprived of facilities & amenities, may constitute torturous conduct. DID involve the deprivation of
food -- both physical & mental.
-- Negligence an issue: can't negligently torture someone. RECKLESSNESS might suffice as that
comes closer to intentionally inflicting pain & suffering. <-- may at first seem like a high level
pressure that's applied which is accepted as an "interrogation technique", but when it accelerates
and becomes harmful, THEN it can be considered torture.
--

Key purposes in torture:

extracting a confession ; or
obtaining for the victim or a third
person information ; or
for reasons of punishment ; or
For purposes of intimidation and
coercion ; or
for reasons of discrimination
THE INDIVIDUAL/who's committing the act is a tricky matter.
"Other person acting in an official capacity" -- expression used in the context of law on torture.
Committee Against Torture recognises this as de facto authorities; don't have to be a formally
constituted government, but you may resemble it. NOT official gov't organs. (EG: think the Taliban
who are NOT the government but they certainly act like it.)
or Irish Revolutionary A??? would engage in military acts although they weren't TECHNICALLY
anything -- they DID use acts of brutality.
PUBLIC OFFICIALS: YOU DON'T HAVE TO BE ONE IN A FORMAL GOVERNMENT ROLE TO
PRACTICE THIS.
E.G The Civil & Political RightS cOMMITTEE on Elmi, which considered Somalia's political
authorities in the 90s.
NATURE of political authority in Mongadishu/whole state was shattered and frayed; difficult to
determine who was in control. Committee said --

Accordingly, the members of

those factions can fall, for the
purposes of the application of
the Convention, within the
phrase "public officials or other
persons acting in an official
capacity" contained in article 1.


IE; didn't formally have to be a part of the government, e.t.c.
CONSENT & ACQUIESCENCE -- states may be "surprised" at the acts of torture they're
responsible.
eg. states in the EUROPEAN COURT OF HUMAN RIGHTS have obligations to investigate human
rights as per the Charter, and therefore must also refrain from torture & also intervene/participate to
prevent torture occurring. INTERVENTION & refrainig.

For example, the European Court held that

a State was in breach of its obligations
under article 3 of the ECHR because it did
not have taken sufficient measures to
prevent some acts of torture/cruel,
inhumane and degrading treatment
administered by non-state actor
(corporal punishment inflicted by the
step-father or corporal punishments on
children when the social worker(s) knew
or should have known about them.
(2001, UK.)
THIS is quite far reaching!
ARGUMENTS FOR/AGAINST TORTURE:
Deontology - adopt a moralistic perspective that torture in itself is evil v.s utilitarian e.g. Kant "people
cannot be treated as means to an end, but ends themselves." I.E; even if you war to say torture
might yield information, that oughtn't be justification -- it's "BAD". (Where do you stop? What if
someone has to torture someone desperately; what if that breaks them down? What if it entirely
breaks her? Think of Harry firing Unforgivable Curses? What if she's desperate; he's struggling out
of his chair, and she's still so desperate -- accidentally slashes his throat? But leave it up to the
audience to draw their own conclusions? It depends a lot upon the actor to pull this off. They bring
the pulse to the action; you just provide them with what they need to flesh out.)
Utilitarians (Bentham) -- casualist approach; "if torture can save lives, then it should be."
THOSE WHO EMBRACE IT:
*See it as having value; ticking time bomb scenario most greatly accentuated. Often appears in
Israeli legal system. What about emergency measures?
"Torture gains information quickly". "Torture is irrepressible" -- why don't we just admit it -- wy don't
we regulate it?
Alan Dershowitz -- OJ Simpson lawyer -- "Torture warrants should be used." GO to a judicial officer
& get a warrant to torture someone. (What if this is what happens? What if people carry warrants

around and someone's like "do you have a warrant for that?" and the suit is like "filed the
paperwork yesterday?" and she's like "Cool. Let me prep a chair." with such quirky dispassion
the theatre laughs, and then she throws one at him and RUNS -- because who would sit down
and simply let it happen? A world like this'd be super interesting.)

Or they keep it secret eg. After the

Landau Report (1987) in Israel
Mirko Bargaric & Julie Clarke: "torture permissible and moral". And could be justified.
One technique to justify torture is to change the categories -- e.g. terrorists & Al Qaeda don't fall into
it; if they don't respect international law, why should we?
Terrrorist groups undermine the legal system w law -- e.g "law fare". Undermine our rights, we had
to respect theirs.

Terrorist groups do not respect the

Geneva Convention and are not
signatories to it;
Sees morality as a contract and
some people (terrorists) as not
accepting the contract;
NEGATIVE
SLIPPERY SLOPE -- if you start using it extensively, you will use it all the time. No such thing as
"selective use of torture". Becomes an established herd mentality.
e.g; four Quantanamo files showed that officials were given specific orders in how they would torture
inmates -- came straight from the Pentagon itself. Not someone trying to play hero; these were
issued from the TOP. Moment you start condoning it, it becomes systematic.
BUT it's ineffective -- people under torture don't tell you the truth, tell you what you want to hear.
"When you are living under circumstances of torture; it's not that you confess to anything, it's
that you confess to everything. You confess in the hopes that the pain will stop."
-- Dignity. Undermining of the worthiness, but you too.
Consistency -- torture by one justifies torture by the other (moral high ground) -- you could go to
Egypt and the other could torture you too.
Ethical: deontological, consider Kant.
Reciprocity -- comes back to consistency one more; don't torture means you won't be tortured.
Obama tried to use this; didn't really work, NGL.
Types of torture:
-- Thomas Aodorno, critical: people who torture respect submission; "authoritarian personality".
Respect for submission to aggression & a belief in aggression. Despot & police chiefs. BLIND

ALLEGIANCE TO CONVENTIONAL BELIEFS & RIGHT & WRONGS.

Milgram & obedience: are people so obedient they will succumb to a torture regime easily,
provided the environment's there?

Milgrams experiments on
obedience to authority
demonstrated that people would
inflict pain on others in violation
of their own moral sentiments if
ordered to do so by someone
they saw as a legitimate
authority (Milgram 1963, 1965,
1974) -- people here made into
"accomplices of torture" .
Torturers aren't savages.
ANYONE can become them.
Irrespective of our
circumstances, we WILL engage
in acts of dehumanisation.

LAW ITSELF IS A VERY BLUNT INTSTRUMENT IN UNDERSTANDING HUMAN

BEHAVIOUR; PUNISHING SOMEONE W/O UNDERESTANDING OF THEIR EXTERNAL
ENVIRONMENT IS PROBLEMATIC.

STANFORD PRISON EXPERIMENT -- people got SUPER enthusiastic here. ZIMBARDO FOUND
that he could make torturers. Could see this happen in Abu Ghraib, e.t.c; the environment
made is what's created them, the "climate". When authority came into play, Zimbardo saw
people began "responding accordingly".

Terrorism does not demand that we

torture to defend ourselves. To the

contrary, the threat of terrorism is a

reminder of the importance of
protecting human dignity. (Ben
Saul, 2005)
INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS;
No definition of the concepts of torture SPECIFICALLY as "once you define something horrid, other
horrid things can escape the definition." Committee makes it clear that it's a case-by-case issue;
can't lay down specific guidelines.
(if you have men off screen being tortured it can't be flat, nor can it be meant as a means for
entertain; if it has impact to it and value, then you have to respect that and represent that and show
reaction to that, otherwise it's flat -- it's a gimmick. if it s a gimmick and a joke of your best black
humoured calibre, then play that up; respect that. and more importantly, don't let it linger on too
long.)
Impact on torturer, impact on victim; double edged sword. Torturer could be linked to arms trade
treaty; simply regulates a "better way of killing" -- doesn't deal w. it properly.

POWERPOINT SIX
Formation of treaties & laws in terms of documentation & significance when it comes to
creating laws b/n stats.
"general problem w human rights is that it comes from a vague area."
Key sources of international rights. Creates rights & obligations when states enter into treaties with
one another. This is the "fundamental nature of human rights treaties" -- have to have the state
involved despite it being considered a "problem" -- it's indispensable. THOUGH they are also
responsible for violating human rights. Protector + upholder is often also the one who is the violator.
Recent new challenges: Manus Island to High Court of Australia -- legality of the Manus Island
solution. May well suffer the same fate as ??? determine what's "morally right"? (http://
www.abc.net.au/news/2013-08-20/barrister-details-high-court-challenge-to-png-asylum-policy/
4900630)
Treaties: "made between states, states are legal entities -- but not all states are incapable of
signing treaties. (may be occupied -- simply DO NOT HAVE THE CAPACITY.) e.g; children do not
have the lawful capacity to make contracts. Other things: may have it's own autonomous nature, but
still under the control of another state.
Can be made by LEGAL ENTITIES & by sovereign states.
"Are they even necessary"? - YES; can't "go it alone" in terms of dealing with the international
community. "Standard to abide by".

Arguably, the need for treaties has

increased as the world's

interdependence has intensified.

Continuing technological innovation,
economic globalisation and the
growth of transnationalism has
resulted in an enormous increase in
the frequency and rapidity of global
interaction
(Department of Foreign Affairs + Trade)

"Are they even necessary"? - YES; can't "go it alone" in terms of dealing with the international
community. "Standard to abide by".
-- argument; "tighter, more closer knit places have become -- the global village -- greater need for
treaties."
context of a treaty is important in dealing w. the flow of information across the internet; there's NO
global treaty for it, but there are individual agreements about the way technology is handled. e.g;
certain states are trying to control the internet w. some sort of convention. (could the UK be thought
to impose a treaty w. nakie kate?) (states HELPING one another)
States:

Needs to have:
(a) Permanent population
(b) a defined territory
government
(d) capacity to enter into relations
with other states - RELATES
BACK TO SOVEREIGNTY

Can Australia make treaties with the indigenous people? Some argue that a treaty is fundamental to
reconciliation between the indigenous & the aborigines -- leads to RECONCILIATION.
Kampmark: "Need to look at those elements. UNLESS you regard or accept the indigenous
populations as individual countries/states, then a treaty is impossible. HAS no government.
DOESN'T have a defined territory. (Technically speaking)
Reason for Waitangi Treaty in NZ -- there was a FORMAL state of war; actual invasion.

Doctrine of tella nurrius has been overturned,the idea of invasion is still highly contested. (people
refuse to believe it was "owned" by people beforehand. Are we dealing with independent states
meeting one another and signing treaties?
Four Elements. Comes from Notevedio Convention on the Rights & Duties of States, 1933.
SEE FOUR ELEMENTS ABOVE.
"Defined territory" can be an issue in terms of the criteria already set forth; dispute when it comes to
Palestine, Israel, e.t.c.
This non-state issue used to exist w. Somalia too, said it wasn't a state -- diffused set of warring
groups, impossible to tell who was in charge or who to speak to.
-Cold War -- countries making agreements w. other countries; capacity came to mind. E.G; in
1945 the Soviet Red Army occupied a whole stretch from the North Sea to the Adriatic -- "an
iron curtain", said Churchill. SOVIET controlled all the states from Poland to the borders of
Japan.
Could East Germany, Czeh, properly make agreements-- especially w Western powers? They'd be
manipulated. If you're under duress/occupation or incorporated into a broader empire, difficult, e.t.c.
Used to think this Eastern block wsas a monolith; that they didn't have independent legal capacity to
make agreements.
e.g; East Germany, occupied, could've signed a treaty w. West Germany - SHOULD be accepted,
but it IS under occupation.

According to the Badinter Arbitration

Committee of the European Union
"the State is commonly defined as a
community which consists of a
territory and a population subject to
an organized political authority; that
such a state is characterized by
sovereignty:Musgrave, 2000.

IF you rare sovereign, you are free; then within the context of that existence, you are powerful,
you can do things w/o inhibition.

Even entering a treaty might be an act of sovereignty.

States: must be some people to establish the existence of a state, but there is no
specification of a minimum number of people. e.g; the Vatican is a state, or Nairu.
No requirement that all of the people be nationals of the state.

 there is no rule that the

land frontiers of a state must be
fully delimited and defined
North Sea Continental Shelf,
Judgment, ICJ Reports 1969, p.
3, para 46 (maritime law -- dealt
w. where the shelf line and
where the border would be; at
what point does one's
boundaries remain under the
sea; determining what land
belongs to who, who gets to
claim whose resources.)

ISRAEL AN EXAMPLE OF AN ISSUE HERE.

State requires a functioning

government, working as a
political body within the law of
the land
This not a condition precedent
for recognition as an
independent state

e.g Assad is technically in ascendancy, but Israel is split -- half under control of one group,
half under control of another. IS IT EVEN FUNCTIONING?

LEGAL CAPACITY: NECCESSITY OF INDEPENDENCE.

Can't be a protectorate, can't be a trustee, can't be a state that is UNDER THE POWR OF ANOTHER
ENTITY.
CRAWFORD ELEMENTS IMPORTANT (2006):
"General legal characteristics."

(1) States have plenary (ABSOLUTE.

SUPREME) competence to perform
acts in the international sphere- make
treaties and so on. (you may do as you
like internationally)
(2) States are exclusively competent with
respect to their internal affairs-exclusive
means plenary and not subject to control
by other States. (they can take care of
themselves -- what about civil wars? MANY REFUSE TO ACCEPT CIVIL WARS;
ONCE THEY DO, THEY ACCEPT THAT THE STATE MIGHT DISINTEGRATE.)

3) States are not subject to

international process without their
consent. E.G; ICC can only govern
situations where consent has been
given by states to accept their
jurisdiction. V. important principle &
problem -- some states would not
have ratified certain conventions;
REFER TO THE REST OF YOUR

NOTES & WEEK 7'S & THEN

WATCH WK 8 & WK 9.
POWERPOINT SEVEN
REVISION:
Refugee Convention: Non-penalisation clause; under international refugee law, irrespective of how
they arrive at their destination, they CANNOT be panellised by "virtue" at that. BUT in many
countries, the point of arrival is v.signifcant. EG; if you arrive by boat and that's now "illegal",
Australia might want to penalise you. MIGHT be a part of a populace platform, e.t.c; think Australia -boat v.s. air.
Domestic law of Australia under the Migration Act that the arrival point -- those arriving by boat;
"technically arriving in a non-existent place." "Not arriving on Australian tendencies." NOT arriving in
the migration zone. REVERSE terra nulls; no-one's here; don't have a legal status for the purposes
of migration & migration zone.
APARTHEID & SEGREGATION:
Segregation & apartheid NOT the same thing.
Segregation/segregated population: NOT a state of apartheid.
Apartheid: (17th c dutch) -- means "separateness" - idea is to separate life in very distinct in terms
of interaction; interaction only takes place in very regulated points. e.g; at no point will individuals
of separate race share a water fountain, bathroom, e.t.c, have the same votingng rights.
Quite a few people like these ideas. "Experiment of social engineering".
"Sophisticated" - systematic theory practiced in South Africa (1848 to 1994).
Segregation in the US - JIM CROW LAWS.
After slavery was abolished in the US, after civil war concluded in 1965, period of "reconstruction" -passage of 13th & 14th amendment. Idea of "equal protection" clause -- but been the subject of
considerable litigation re affirmative action, separating races.
Jim Crow Laws -- reaction to the end of the Civil War. Southern States endeavoured to "retain
aspects of the slave state". Couldn't call it slavery anymore -- that was illegal -- but attempted to
maintain social/political segregation. (<-- to be examined under general philosophies of
exclusion.)
Jim Crow -- "SEPARATE BUT EQUAL".

Political equality is not the same as

racial equality

Apartheid: usually associated with id'ing a race, separating a race & doing it in an institutional way
(like genocide, sans killing.)
FEATURES OF THESE "CRIMES OF INTERNATIONAL LAW ON HUMANITY" -- based on the idea
of a system and intention. (think genocide too! intentionality is key as is a system. Torture too!)
LEGAL QUALIFICATION/UNIT OF A STATE: MONTEVEDIO (1933)
-- dON'T FORGET, THE INHABITANTS DON'T ALL HAVE TO BE NATIVES.
-- when it comes to "defined territory" -- CAN still be some dispute about borders!
-- government needs to be IDENTIFIABLE AND STABLE. state of chaos is diff; think of Israel.
-- capacity to enter into relations. (think cold war.) CAPACITY ARISES FROM INDEPENDENCE.
MAKES IT FUNDAMENTAL AS A UNIT IN TERMS OF HOW RELATIONS ARE DEALT W. IN
INTERNATIONAL LAWS.
Un Refugee Convention (1951):
"fundamental document".
SUMMARISE: offers a definition of asylum seekers & refugees + has three key principles:
1) non refulment
2) non penalisation
3) non discriminisation
"Key refugee principles" when it comes to processing & assessing them & processing settlement
claims.
State Obligations: Detention is IMPORTANT b/c deemed a "violation of the Refugee Convention to
hold individuals for indefinite periods of time." -- UN Committee assessed Australia's compliance w.
refugees to be in breach. Think of ASIO: "assessment risks". "Security assessment" for certain
refugee applicants -- if they're seen as a security risk then they can be detained indefinitely, which is
not in accordance w. current international laws; does not even have to be a formal charge at all.
ASIO already detained 46 people for being linked to "TAMIL TIGERS" (purported terrorists). BUT
NEITHER CHARGED, NOR SENT BACK TO SRI LANKA. "Legal limbo".
Asylum seeker is a refugee who seeks refugee status. EVERYONE HAS THE RIGHT TO
THIS. Don't have to be a qualified refugee; don't need to fit/be categorised as anything else -- your
status changes when you're determined as a refugee. WHEN you are labelled as a refugee, then all
the rights accrued from that status are given to you. Prior to that, you are merely "seeking refuge".
ARTICLE OF REFUGEE CONVENTION DEFINING REFUGEE:
Well founded fear of being persecuted for race, religion, nationality, politics, e.t.c.

Asylum Seeker:A

person who enters

or remains in a country either
legally or as visitor or tourist or
student or illegally, then claims
refugee status under the terms

of the UN Convention Relating to

the Status of Refugees (1951)
(Refugee Convention)
Refugee: A persons recognised as a refugee under the
Refugee Convention.

Article 1A(2) of the Refugee Convention defines a

refugee as: A person who owing to a well founded fear of being
persecuted for reason of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to
avail himself to the protection of that country
CONVENTIONS RE: REFUGEE CONVENTION.
Article 16 Para 1: "refugee shall have free access to courts of law of the territorial & contracting
states". BUT some individuals have been put into this legal purgatory. EG; if individuals are put in
this legal limbo, in this territory that "ins't Australian" -- by definition, then, they can't have access to
Aus courts & appeals. Should have free access to legal courts, but MANY courts try to frustrate this.
Article 27: "not expected to have valid or legal documentation as a refugee/asylum seeker" -- when
they're fleeing, they DON'T Have to have documents. If you DON'T have a valid travel document you
shall be ISSUED w one.
Article 31: 'non penalisation for legal entry or presence' -- EVEN if you enter illegally you should
NOT be panellised for this. IRRESPECTIVE of how you enter -- illegal arrival in Australia is one w/o
a legal visa/proper doc -- but if you're a refugee, you SHOULDN'T be penalised.
Article 33 : contracting states & obligation not to return individuals who risk persecution. "Nonrefoulment?" "Non-referrment" -- obligation not to return individuals who risk persecution; where life
and freedom will be threatened on account of race, e.t.c. "Often cited in regards to death penalty
cases" -- think Julian Assange.

The Executive Committee

[r]eaffirms the fundamental
importance of the principle of
nonrefoulement, which prohibits

expulsion and return of refugees,

in any manner whatsoever
whether or not they have formally
been granted refugee status

ASIO: reversed it's determination in several cases, but under the newly elected government is that
the review system will be abolished. I.E; Abbott to accept ASIO's investigation w/o further
determination.
ASIO: reversed it's determination in several cases, but under the newly elected government is that
the review system will be abolished. I.E; Abbott to accept ASIO's investigation w/o further
determination.
HUMAN RIGHTS COMMITTEE found that this continued detention, e.t.c, is that these were in
violation; those seeking refugee status fall into legal limbo b/c they're considered a threat. A
"blackhole".

'cumulatively inflicting serious

psychological harm'' and in breach of
the International Covenant on Civil and
Political Rights."

*says there's serious psychological harm & violation the covenant

POINT TO REMEMBER HERE IS THAT THE COMMITTEE ACCEPTS THAT STATES HAVE
NATIONAL SECURITY INTERESTS - THAT YOU DO WANT TO ANALYSE A CLAIMANT'S
POLITICAL STATUS. WE WILL WANT TO ANALYSE.

The state party [government] has

not demonstrated that other, less
intrusive, measures could not have
achieved the same end of
compliance with the state party's
need to respond to the security risk
that the adult authors [refugees] are
said to represent

NO JUDICIAL REMEDY: UN found 46 cases of illegal detention, 46 cases of no effective judicial

remedies for illegal detention & 46 cases of inhuman/degrading treatment. [OUR REVIEW BOARD
IS TO BE ABOLISHED, HOWEVER; UNLIKELY THEY WILL RECEIVE ANY SORT OF
COMPENSATION.]
ARTICLE 2, UN DECLARATION:
AN EXPLANATION OF NATURAL RIGHT -- e.g, "w/o distinction of any kind".
STATES HAVE ATTEMPTED TO IMPOSE RACIAL/EXCLUSIVE THINGS ON THEIR STATES.
Historical Apartheid: an effort to "control security" -- population control.
Separateness is "vital" -- people CANNOT engage except in certain distinct locations; certain
people can't be employed.
e.g Afrikaans -- blacks could work in construction, but couldn't be a lawyerr.
APARTHEID USED RE: ISRAEL. Informal tribunal created to exercise that -- Russell Tribunal in
Palestine, too.
SEGREGATION OF THE U.S
APARTHEID -- HOW FAR CAN IT "REACH"?
SEGREGATION OF THE US -- PLESSEY V. FERGUS -- 1896.
Deals w. the way coach cars were segregated. (think Rosa Parks?)
Plessey had white and black background; felt entitled to sit w. white. Charged w violating local
statue, went all the way to the Supreme Court.

challenge made to existing laws

on segregation for coach cars in
the Supreme Court: Held (7 1)
by the Court that while the
Constitution guarantees equality,
the Jim Crow laws were not
about inequality, but
separateness, about being
separate but equal;

DOESN'T MEAN SOCIAL EQUALITY -- THERE'S EQUALITY BEFORE THE LAW BUT
SEPARATENESS TOO. HELD TO BE "PERFECTLY LEGAL".
RACE + IDENTITY HERE USED AS A DIVISION.

Plessy -- argued that the "Separate Car Act violated the 13th & 14th Amendments of the
Constitution." (Plessy decided to brave this racism, considering that he might not have been saved
in a bar.)
Plessy found "guilty of not leaving the car."
13th -- abolished slavery + 14th is "equal protection" of laws + "due process".13th -- abolished
slavery + 14th is "equal protection" of laws + "due process".

The Separate Car Act did not

conflict with the Thirteenth
Amendment, which abolished
slavery. That is too clear for
argument. Legal equality
between the races is not
destroyed on the basis of colour.
- Henry Brown
- 13th Amendment argument fair.
- 14th Amendment granted you legal equality, but NOT social equality -- didn't mean it'd abolish
distinctions based on colour. Can be POLITICALLY and LEGALLY equal, but NOT socially.
DISSENT IN JUDGMENT: the "colourblind' thesis -- the law has to be colourblind; race should
NOT apply.
Harlan ONLY ONE TO DISSENT-- "there is an equal protection not merely in law but also in terms of
social protection ; can't have separate but equal thesis -- violation of the fourteenth amendment.

In respect of civil rights, common to

all citizens, the Constitution of the
United States does not, I think permit
any public authority to know the race
of those entitled to be protected in
the enjoyment of such rights.
The thing to accomplish was, under
the guise of giving equal

accommodations for whites and

blacks, to compel the latter to keep to
themselves while travelling in railroad
passenger coaches.

^ WHAT THE LOUISANA ACT DID.

CONSEQUENCE OF PLESSY V.S FERGUSON -- separate facilities were fine for blacks & whites so
long as they were "equal". AFFIRMED separate but equal doctrine. ALSO meant that there were
inequalities that rose in terms of standard -e.g black school would have to have the same "funding"/standard as a white school
BUT social inequality was still rife, even w this 'separate but equal" distinction

Separate but equal became the

doctrine that covered everything
from theatres, to restaurants,
public schools, and was only
struck down in the case of
Brown v Board of Education
(1954).

JIM CROW LAWS:

1865 - 1965.
dID not STRIP CITIZENSHIP FRO BLACKS BUT IT MODIFIED THEIR BEHAVIOUR IN SOCIAL AND
POLITICAL SPHERES.
E.G; THE SEPARATE CAR ACT IN LOUISANA.
Considered matters of division in a v. specific way. Blacks punished for transgression.
SOUTH AFRICA THE WORST CASE -- GENUINE MODIFICATION OF POLITICAL RIGHTS,
STRIPPING AWAY OF REPRESENTATION/POLITICAL RIGHTS -- E,G, COULD NOT LEAVE
THEIR HOMELANDS W/O ENORMOUS DIFFICULT W. THE USE OF PASS LAWS.
Whereas in Louisana/Southern States, they could STILL VOTE albeit w. heckling & persecution.
Homelands in South Africa -- "Bantustans" -- homelands policy, wherein it looked like a

"separate but equal" doctrine where SA's were given tribal homes; meant to give them their
identity and functioning groups in quarters of SA, but became like ghettos. Became privation.
Movement applicable in Southern States.
APARTHEID V.S SEGREGATION:
Education in S.A -- if you were of a specific colour, you could not rise beyond a certain level; couldn't
be professional. Couldn't be lawyers/engineers. Rigidity of SA apartheid "v distinct". ALSO different
set of education materials.
Removal of apartheid in SA happened overnight -- revolutionary gov't redrafted the Constitution. "In
two years went from becoming an apartheid state to being a post apartheid state." SOME
dysfunctionality about it.
In the US it was "evolutionary" -- took place in courts, e.t.c.

Removing Jim Crow laws was

evolutionary Brown v Board of
Education for education; Loving v
Virginia (ending race-based
marriage legislation). The SA
response was a total rewrite, a
new constitution.

APARTHEID "BRILLIANT"? IN HOW IT ORDERS PEOPLE? CODIFIED.

Has no parallel in history -"Was a way of keeping races in charge" -- kept a tense accord between the races "through the
power of the gun".
Went through an incredible array of laws -- 317 laws to ensure racial discrimination could occur.

Non-whites were excluded

from the political sphere in
terms of voting or political
activity.

NO political involvement B/C of the fear of "polluting"/ "introducing" impurities of the race, but also
BC it's always a constant tussle between which race will dominate the other: didn't want to allow
them ANY CHANCE to overrule, to take control, to dominate.

APARTHEID also a rection to external overthrow/British control.

Kept separate politically AND socially. SOME limited contact; black waiters, white clientele at bars.
Still at least a classist segregation.

Passes had to be carried,

enacted by the Pass Laws of
1952, requiring non-white South
Africans over 16 to carry a pass
book known as a dompas.
ENTIRE INFORMATION.
APARTHEID FROM 1948-1994.

Kept separate politically AND socially. SOME limited contact; black waiters, white clientele at bars.
Still at least a classist segregation.
DOMPAS HAD: *fingerprints, photos, personal details of employment, permission from the
government to be in a particular part of the country, qualifications to work/seek work there,
employer's reports on worker performance/behaviour. Like a CV.'
Justification for ht ebureaucracy -- allowed them to MONITOR people. Done in a VERY
SYSTEMATIC way.
DIFFERENT EDUCATION FROM DIFFERENT PERSONS;
Bantu Education Act in 1953 -- e,g; nonwhites given menial tasks.
Black sonly educated to a "certain degree" -- not given professional, no doctors, no lawyers, e.t.c.
RESTRICTED JOB MARKET TO ENABLE WHITES TO HAVE FIRST SAY IN EVERYTHING.
Made part of a constitution.
APARTHEID HAS VARIOUS EXPLANATIONS:
"Biological" -- people are "predisposed to distrust outsiders."
Psychological explanations - "important of environment and learning processes through
socialisation."
BUT APARTHEID ACCEPTS OTHER RACES, BUT ALSO RANKS IT HIERACHICALLY - says each
has it's place.
SOCIOLOGICAL EXPLANATIONS -RACIST ATTITUDES ATTAINED SCIENTIFIC CREDIBILITY IN THE 19TH CENTURY THROUGH
SOCIAL DARWINISM
e.g; Craniology -- certain races have "smaller brains". Made clear after 2nd world war, this was
nonsense.
19th century; superior race v. powerful. "Racial structure".

Might also be "liberal" accounts (progressive).

Marxist -- shifting the responsibility for apartheid away from racist ideologies towards capitalist
profitability. (i.e; able to put economic strength in the hands of white people.)
-LIBERAL CRITIQUE: economy/markets would function better w. minimal state interference. Comes
from the 19th century.
-- think about how black labour could be used; apartheid was effective in some ways -- some
argued that apartheid was a "distortion of the market"; when you create "specific market of
employment" for whites/nonwhites, you create DISTORTIONS. SOME STUDIES have shown that
this segregation is surprisingly economically efficient.
eg. Southern states / slave state -- can be rather efficient -- previously though the Northern states,
the industriousness were more efficient -- this in fact, not valid. "Had the war not taken the course it
did", Southern states could have started an "empire".

Yes, it is true that black labour and

mobility could be affected and made
cheaper, but not more productive.
A system might be good for
capitalists, but not good capitalism.

Racial conflict - one has to

consider material conditions
within which the conflict takes
place - the inherent inequalities
in the struggle for scarce
resources; (pluralism)

eg. Southern states / slave state -- can be rather efficient -- previously though the Northern states,
the industriousness were more efficient -- this in fact, not valid. "Had the war not taken the course it
did", Southern states could have started an "empire".
Apartheid incorporated, in a very sophisticated way, "races in their places". NOT WHITE PEOPLE
TRYING TO RID THEMSELVES OF A RACE: they're too outnumbered for that, either way.
Rex -- sociological places -- talks about HOW racial conflict arises:

pluralistic society, uneven resources.

Identifiable boundaries between conflicting groups -- black v.s various other blacks. Apartheid "also
kept the blacks in check from one another". 'Alllowe control to be maintained to ensure there
wouldn't be a break down of the state structure".
"Cultural system of presumed difference."
Cassese outlines the development of apartheid through three dimensions; historical, religious
& economic.
Asheron -- divides it into politics of nationalism, culture of separation (encourages separateness) &
economics of differentiation. (whites in certain jobs, blacks in others.)
Economic context for apartheid; some say capitalism an ally, some say it wasn't. "An
economic system can itself create the inequalities that will provide the attractive
circumstances that apartheid can exist under."
-- can't say it's truly "capitalist", as there were so many market distortions; regulated the labour
market, regulated the way workers interacted.
In apartheid, state is divided against itself in many ways in a purposeful way; division breeds
security (think executive, bla, bla?)

struggles over the distribution of

labour and the central dynamic of
apartheid. -- "fundamental" to the
formation of apartheid. tension &
struggle in labour; economic factors
are key.

In apartheid, state is divided against itself in many ways in a purposeful way; division breeds
security (think executive, bla, bla?)
Neo-Marxist: notion of migrant labour & how it affected the political economy of SA Capitalism.
SA economy also recipient of considerable migrant labour; those from diff parts of Africa.
Argument here: enabled a "pool of cheap labour to develop" -- apartheid's sustainability developed
here.
Certain parts of the economy controlled by certain races for the sake of profitability & control.
APARTHEID; NOT SIMPLY A CONSEQUENCE OF AN INTERNAL PROCESS BECAUSE OF THE
VULNERABILITY TOWARDS THE BLACKS BY THE CONQUEST OF THE WHITES.
Also a reaction to whites -- the British - British imperialism played big role in the AFricaan identity,
remains fundamental "defining point" of that identity. THIS CONFLICT arose
Wars fought against the Boers in the 19th C b/c of British interest in mineral deposits resulted in

oppression of Dutch South-African population. I.E; the Boers were oppressing the Dutch South
Africans, to ensure their Afriknaer nation would continue. HOWEVER the Boers did feel culturally
oppressed; they had to speak English in school, e.t.c, and were forced into poverty.
ANTI BRITISH. ALSO REPUBLICAN. CHRISTIAN; GOD IN APARTHEID.

Apartheid(Afrikaans pronunciation:[prtit]; fromAfrikaans[1]"the state of being

apart") was a system ofracial segregationenforced through legislation by theNational
Party(NP) governments, who were the ruling party from 1948 to 1994, ofSouth Africa,
under which the rights of the majority black inhabitants of South Africa were curtailed
andAfrikanerminority rulewas maintained. Apartheid was developed afterWorld War
IIby the Afrikaner-dominated National Party andBroederbondorganisations and was
practised also inSouth West Africa, which was administered by South Africa under
aLeague of Nationsmandate (revoked in 1966 via United Nations Resolution 2145[2]),
until it gained independence asNamibiain 1990.[3]

Racial segregation in South Africa began in colonial times under Dutch[4]and British
rule. However, apartheid as an official policy was introduced following thegeneral
election of 1948. New legislation classified inhabitants into fourracial groups("black",
"white", "coloured", and "Indian"; with Indian and Coloured further divided into several
sub-classifications),[5]and residential areas were segregated, sometimes by means of
forced removals. Non-white political representation was completely abolishedin 1970,
and starting in that yearblack peoplewere deprived of theircitizenship, legally
becoming citizens of one of ten tribally basedself-governinghomelands
calledbantustans, four of which became nominally independent states. The
government segregatededucation, medical care, beaches, and other public services,
and provided black people with services inferior to those of white people.[6]
Afrikaners -- white people still

Anti-capitalist; capitalism corrodes social ties; official progenitors of apartheid thought capitalism
was an "enemy", as capitalism was too obsessed with commodities & accumulation. "Godless",
ignored higher callings than profit. Communism too: Communism was "godless".
Apartheid crucial in race relations: not "merely" a reaction to control on whites, but also AGAINST
whites & the British identity & opponents of the Afrikaner program.
Also anti-Fascist; fascism unChristian.
Communism dislked b/c atheistic -- 1950 Suppression of Communism act was an NP
reaction )National Party). ANTI COMMUNIST WHITE POWERS SUPPORTED THEM.
South Africa remained under embargo for just over 3 decades, but its ill received arms shipment.

It was anti-British and anti-black

imperialism was a problem
because it racially mixed
individuals in the name of

economy, creating a mess of

ethnicities (mengelmoes).

Some would argue that the reaction of apartheid is "perfectly undrstable' bc wherever there's
been imperial policy of riace mixing, been subsequent problem w. race relations.
e.g; Fiji, Malaya, the Carribean.
"Complex social arrangements that result in variations on race laws. Each of these states DO
have various functioning racial laws; racial separation & favouritism is standard fare. EVEN in
Australia.

Capitalist urbanisation
impoverished may Afrikaners. It
was a resentment against Anglo
liberal capitalism, called English
money power (Englese
geldmag). A pro-Afrikaner
capital movement was born to
combat this in the name of
salvation. English taking control
of SA -- took quite a bit of money
-- therefore, it was almost a
resentment and a vindictive
payback.

THE EXTENT OF APARTHEID:

- been applied to Israel's treatment of Palestinians; seen in protest marchers.
eg. Israeli Apartheid Weeks
- ethnicities are privileged in the State of Israel.
- Palestinians in the West Bank deprived of citizenships.
- People are oppressed.

ARGUMENT OF APARTHEID MEANS THAT IT'S A CHEAPENING

- discrimination across the board in Israel against Palestinians.
Use of administrative detention -- use of a military legal system that controls a population in the
name of pre-emptive security; think of the dompas
Most important source; Russell Tribuan on Palestine, a NGO (non-gov-org) which was formed
specifically to see if Israel had committed these CAH/apartheid.
Based in London.
No formal legal status. Created "ad-hoc".
Examined the "evidence" submited by experts as to whether apartheid did/does exist.
-- Cape Town session in 2011.
* Sociocide" -- controling aspects of society. hide members of society off, treat 'em in a distinct way;
intention will eventually be to kill 'em off.
Labour exploitation -- e.g, SA, distinct labour laws restricting black s-- using Palestinian labour for
construction
Extrajudicial killings.

The Tribunal finds that Israel

subjects the Palestinian people
to an institutionalised regime
of domination amounting to
apartheid as defined under
international law. This
discriminatory regime manifests
in varying intensity and forms
against different categories of
Palestinians depending on their
location. -- Russell Tribunal.
Tribunal identified three features for apartheid: (apartheid; race, social exclusion, subordination)
1) 2 distinct social groups can be id'd
2) inhuman acts against subordinate group -- this doesn't necessarily translate into a regime of
apartheid
3) such acts committed systematically (institutionaliseD)
Should the definition be extended?

e.g "genocide" still v. narrow.

Goldstone says there's been a "theft" committed on the application of apartheid
Shimon says that the term's been cheapened -- the ID's been taken away.
Also anti-semitic to Israel ? It'd delegitimatise Israel.
The two intend to self-segregate.
BUT ALSO in many societies there's self-segregation. (if it's imposed by the states, THEN that might
be aparhteidic.
Elements of discrimination & apartheid = yes.

Separateness is selected by the

communities themselves;
There is no intention to maintain it at the
behest of the state, to institutionalise it,
or an institutionalised regime of
systematic oppression and domination
by one racial group (INTENTION IS
THE POINT HERE; DID ________
MEANT TO DO THIS?)

APARTHEID IS "SINGULAR". like the Holocaust!

What abouut Australia & it's boundary straits, e.t.c to keep Aboriginals from going too far?
POPULATION control.

1998 Rome Statute definition of

Apartheid? Inhumane acts committed
in the context of an institutionalised
regime of systematic oppression and
domination by one racial group over any
other racial group or groups and
committed with the intention of
maintaining that regime

ISRAEL HAS ELEMENTS OF DISCRIMINATORY ASPECTS, BUT NOT BEYOND THAT.

West Bank Wall -- "apartheid?" No; constricts movement, protects boundaries, also considered a
safety measure.

Even if there is oppression and

critics do maintain that, it must be
intentional separation and Israel
here does at least in principle
agree to the concept of an
existence of a Palestinian state in
Gaza and almost all of the West
Bank.
Does that group (in this case, Arab
Israelis) vote? 20 percent of
Israels population are Arabs and
have the vote, have
representatives in the Knesset and
have representatives on the
Supreme Court.

South Africa -- costly. Maintaining structure for the stability, but towards the 1980s that stability
began to unravel, partially because of international embargo, but also the re-emergence of Nelson
Mandela.
"Festures channeling of virtualis slots of social ethnic groups -- individuals placed in specific rolls".
Might be more economically efficient, but will result in market divisions.
Apartheid Convention makes it a crime international law. Didn't make it clear what it would be -same problem with the genocide convention.
Drafted in the 3rd Committee of the General Assembly.
Some said it was too narrow, others thought it might be too wide to other states that practice racial
discrimination.
Most delegates saw the Convention as an instrument to be employed only against S.A.
Definition was narrowed to save states who generally practiced racial discrimination.

 International Convention on the

Suppression and Punishment of
the Crime of Apartheid (1973):
apartheid is a crime against
humanity and that inhuman
acts resulting from the
policies and practices of
apartheid and similar policies
and practices of racial
segregation and
discrimination are
international crimes (art. 1).

Article 2 defines the crime of

apartheid which shall
include similar policies and
practices of racial segregation
and discrimination as
practised in southern Africa
as covering inhuman acts
committed for the purpose of
establishing and maintaining

domination by one racial

group of persons over any
other racial group of
persons and systematically
oppressing them.

In 1980 there wash attempt to create an international criminal court to try crimes of apartheid; never
worked.
Many states reluctant to be involved w. apartheid punishment.

No such court was established.

Left to States to enact legislation to
enable them to prosecute
apartheid criminals on the basis of
a form of universal jurisdiction.
The Apartheid Convention allows
State parties to prosecute nonnationals for a crime committed in
the territory of a non-State party
where the accused is physically
within the jurisdiction of a State
party (arts. 4 and 5).
in South Africa; NOT A SINGLE CONVICTION FOR APARTHEID.
Didn't want to punish but reconcile through "Truth Commission" -- but never a conviction.
STILL waiting for convictions from South Africa; we have the ad hoc determination of the Israeli
context, but don't have a formal reparation for what should happen.

 No one has been was

prosecuted for the crime of
apartheid regarding SA.
Apartheid abandoned in 1990
By 1994 a democratic South
Africa adopted a Truth and
Reconciliation process involving
granting of amnesty.
Post-apartheid South Africa has
not become a party to the
Apartheid Convention
In 1977, Additional Protocol I
of the Geneva Conventions of
1949 recognized apartheid as
a grave breach of the
Protocol (art. 85, paragraph 4
(c)) without any geographical
limitation.
In 1998, the Rome Statute of
the International Criminal
Court included the crime of
apartheid as a form of crime

against humanity (art. 7).

Apartheid Convention might
be dead as far as the original
cause for its creation
apartheid in South Africa is
concerned, but it lives on as a
species of the crime against
humanity, under both
customary international law
and the Rome Statute of the
International Criminal Court.

POWERPOINT EIGHT
SLAVERY: "attractive economic use". Previously been a very "acceptable form of social order".
Slavery previously thought to be economically inefficient -- thought that the Southern states
would've been unable to sustain therr slave economies, which isn't true. NOR is that a slave
economy.
LEGAL EFFORT TO PUNISH SLAVERY v.s RESISTANCE, ODDLY ENOUGH, MOSTLY BY THOSE
POERS WHO CONSIDER IT AN ILLEGAL/IMMORAL ENTERPRISE.
REVISION;
Segregation v.s Apartheid (singualar.)
US: governed by Jim Crow laws -- "separate but not equal". (Louisana Coach example Plessey v.
Ferguson) This case upheld by a 7-1 majority in the High Ct -- not against amendment 13 or 14.
doesn't mean if you're politically equal also fans you're socially/racially equal.
Apartheid; distinct form of social ordering; regulation; dompas politically regulated, pre-emptive
moderation.
Appropriate to extend apartheid? Used re Israeli treaties -- been a problem

JUSTICE JOHN MARSHALL HARLAN, ONE OF THE FEW WHO DISSENTED; laws need to be
colourblind. Laws that highlight distinctions based on colour "highly flawed". IRONICALLY, this'll put
affirmative action programs in the "wrong" too. -- people appointed to a position BC of their status;
their skin colour. Makes pegging things difficult; rights talk can be examined from either way.
Rome Statue -- 1998 -- CRIME AGAINST HUMANITY
Apartheid law developed specifically for South Africa -- therefore Apartheid Convention might be
"dead", esp. bc it's so specific. e.g Russell Tribunal tries to revive the law of apartheid (2011, Cape
Town.)
apartheid -- politics of nationalism, culture of separation, economics of differentiation. DISTINCTION.
Reaction to a British -- Afrikaners saw them as "mortal enemies", idea fundamentally lying in that
urbanisation (British conquest) also created an underclass of Boers. IE; structural abuse often arises
from history.
Russell Tribunal NOT legal; a "people's court". "Instructive body". Idea of system &
institutionalised & identifying racial groups and the inhumanity present there important.
Point of apartheid is how extensive it is; V extensive.
SLAVERY FEATURES
Orlando Patterson: slavery -- "social death". Others challenge this view.
3 universl afeatures;
-- master has the right to threaten or punish the slave w. violence. legal powers reside in the master
to punish the slave when the slave disobeys. Structure here is the RIGHT the master has OVER the
slave (disabling.)
v. sophisticated in a legal sense. regulated in considerable sophistication; who was sold, how,
grades, e.t.c.
"Natal alienation" -- "denied a right of birth". Universl Adeclaration, after all, talks of you being
innately born with rights. SLAVERY TAKES AWAY THAT "BIRTH GIVEN RIGHT".
Slaves are deprived of honour.
It's origins? -- Marx & Engels (1846) -- slavery a byproduct of a kinship structure; based on tribal
models, ruling + governance.
Old Forms/Ancient World:
* part of war. might be part of bounty. andapodon.
* oiketes. household slaves. part of the economy.
* doulous. common/chattel slave.
Kampmark: this taxonomy has not changed much. aspects have changed, but we have these
distinctions of how labour is used. SLAVES DO NOT NECESSARILY NOT HAVE INCOME OR
HISTORICALLY DEPRIVED OF IT; slaves of deep south were given/expropriated earnings they got
from the use of their land.
"In fact a transaction taking place".
-- Forms of slavery:
War -- in times of war, civilians may be enslaved. Usually sanctioned by the gov't. (NOT a bounty,
but a technical one. )
Children as domestic servants -- not owned, in an unregulated economy where there's a flow of
labour; certainly in the international system. FORMS of slavery. Carribean & West Africa.

-- versatile, highly complex form. sophisticated but hard to punish & even easier to fall into. in
any good economy, there is any good number of slaves working. may NOT be openly
considered slavery, but it like is. e.g; a kind of au pair? how slavery is contextualised is
important.
-- Global economic system. ECONOMICS V.S RIGHTS.
"Commercially oriented" in it's manner. Became global -- "Age of Discovery" - European powers
went to America, e.t.c, to search for the New World, e.t.c. often would bring labour home.
Use of labour IN the colonies. Sophisticated process of CONQUEST and creation of elaborate
trading routes. One thing neglected in slave discussion is that many other powers were involved in
this -- sophisticated agreement spanning several Arab states too. Portugese & Spanish trading w.
Arab traders. Idea of ASSETS and ECONOMICS v. important in terms of s;lavery.
By 1780s, big transatlantic trading org. Traverses Europe & America; becomes a "global slave
economy". Use of this is fundamental to how we discuss identities & rights when it comes to slave.
INDENTURED LABOURER NOT OFTEN SEEN AS A SLAVE.
But from the 17th century, "indentured labourer" also meant slave.
White slaves AND black slaves -- no racial distinction here in 17th century north america. this racial
distinction only occurs i the 18th c. not inteesrted in what's less decent raciall.
SLAVE IDENTITY OCCURED BEFORE RAIAL IDENTITY; racial identity comes after economy.
Economic factor dominant discourse; e.g, look at the abolition of slavery in America and how it
appeared economically speaking.
SLAVERY & PUNISHING IT;
League of Nations, 1926, Article 1.1

the status or condition of a person

over whom any or all of the powers
attaching to the right of ownership
are exercised: The Slavery
Convention 1926, article 1.1 (League
of Nations)
RIGHT OF OWNERSHIP IS NOT ALWAYS EASILY DISCERNIBLE -- have to look at the contract.

acts involved in the capture,

acquisition or disposal of a person with
intent to reduce him to slavery; all acts
involved in the acquisition of a slave

with a view to selling or exchanging

him; all acts of disposal by sale or
exchange of a slave acquired with a
view to being sold or exchanged..

CONTROL OF SOMEONE. OWNERSHIP OVER SOME. TRAFFICKING SOMEONE.

Since 19th Century, international movement to deal w. slavery. Abolitious was still contradictory;
some thought trade should be abolished/international trade should be abolished, but owning them
not an issue. IRONICALLY founding fathers, e.g Thomas Jefferson, owns slaves. Same goes for
George Washington. (First President!)
Slavery was so normalised for them that there was a difference between trading beings on the high
seas & having one of their own. WHAT HAPPENS WHEN SLAVERY IS NORMALISED IN A
STATE; considered attractive in social ordering & engagement, considering they were an
"extension".

Between 1815 and 1957 around

300 international agreements were
implemented, with varying degrees
of success, to suppress slavery.
1792 - Denmark bans import of
slaves to its West Indies colonies
(law effective from 1803). -- some
said they didn't have a big
economy to start w.
1807 - Britain passes Abolition of
the Slave Trade Act, outlawing
British Atlantic slave trade.
UDHR A KEY SHOW OF HOW SLAVERY IS SEEN AS A VIOLATION
-- 'NO ONE SHALL BE HELD IN SLAVERY OR SERVITUDE' (Article 4).

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS, ARTICLE 8:

No one shall be held in slavery; slavery and

the slave-trade in all their forms shall be
prohibited.
No one shall be held in servitude.
No one shall be required to perform forced
or compulsory labour. (Compulsory?)

POWER & CONTROL ARE KEY HERE; MAKING SOMEONE DO SOMETHING AGAINST THEIR
WILL.
UN SUPPELEMNTARY CONVENTION ON THE ABOLITION OF SLAVERY, SLAVE TRADE &
INSTITUTIONS SIMILAR TO SLAVERY (1956).
-- Debt bondage. Debt ties you/compels you to do some work. "Status in terms of liquidation of debt
is not reasonabley limited. Control over person to repay debt."
-- Serfdom (only abolished in Russia in late 19 C). Condition or status of a tenant who is by law/
custom/agreement bound to live and labour on land belonging to another person. (E.G; AU PAIR?)
"Bound" to the land -- inextricable. CANNOT leave it. HAVE to work there; e.g, on farming land.
Social Interactions; "Any institution or practice whereby".
1) Trafficking in women & children is an issue, trafficking of brides -- passing on of indivudalls to
forced relationships for a "kinship model" -- for alliances, e.t.c. NOT just a child in labour or an
individual connected to land or by debt, but may be marriage. CLAN rights; trying to target a kinship
model of existence.

(c) Any institution or practice

whereby:
(i) A woman, without the right to
refuse, is promised or given in
marriage on payment of a
consideration in money or in kind to
her parents, guardian, family or any
other person or group; or
(ii) The husband of a woman, his

family, or his clan, has the right to

transfer her to another person for
value received or otherwise; or
(iii) A woman on the death of her
husband is liable to be inherited by
another person;

(d) Any institution or practice

whereby a child or young person
under the age of 18 years is
delivered by either or both of his
natural parents or by his
guardian to another person,
whether for reward or not, with a
view to the exploitation of the
child or young person or of his
labour.

-- EXPLOITATION. "Actually worse than ever'. SOME would argue that the old system of
slavery was clearer; as it was institutionalised & regulated, at least knew the context of where
rights ad obligations lie.
In this new global unregulated economy where rights are unclear, their situations are less
certain. FURTHERMORE slaves had their own protections in the 17th century, had certain
entitlements; these may not exist today.

1956 DOC SETS OUT WHERE THESE ARE SITUATED.

Article 4 the convention: "Any slave

who takes refuge on board any
vessel of a State Party to this
Convention shall ipso facto be free".

 Article 6: The act of enslaving

another person or of inducing
another person to give himself or a
person dependent upon him into
slavery, or of attempting these
acts (trafficking), or being
accessory thereto, or being a party
to a conspiracy to accomplish any
such acts, shall be a criminal
offence
-- DEEP AWARENESS SOME STATES WOULDN'T HAVE SLAVES AND OTHERS WOULDN'T BE
ALLOWED IT, BUT THEY'D STILL TRAFFICK PEOPLE -- LIKE THE 20TH CENTURY PEOPLE
TRAFFICKING. NOT A CONVENTIONAL COMPLEX; DOESN'T EXIST SOLELY IN DEVELOPING
WORLDS.
Wherever there are flows of capital or people working in services, there may be people trafficking.
Sex trade from Europe is a more familiar variation of people trafficking. Wasn't big in 1956 but HAS
become a problem. "Emergence of a global trading system".
Rome Statue, 1998 -- enslavement is a CRIME AGAINST HUMANITY.

the exercise of any or all of the

powers attaching to the right of
ownership over a person and
includes the exercise of such
power in the course of trafficking
in persons, in particular women
and children.

FUNDAMENTAL

SIMILARITIES; ALL LINKED

TO OWNERSHIP, RIGHT TO
CONTROL, AND THE
PRODUCTION OF LABOUR.

-- DEEP AWARENESS SOME STATES WOULDN'T HAVE SLAVES AND OTHERS WOULDN'T BE
ALLOWED IT, BUT THEY'D STILL TRAFFICK PEOPLE -- LIKE THE 20TH CENTURY PEOPLE
TRAFFICKING. NOT A CONVENTIONAL COMPLEX; DOESN'T EXIST SOLELY IN DEVELOPING
WORLDS.
UN PROTOCOL TO PREVENT SUPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN + CHILDREN (2000)
- forced labour, sex work, servitude, removal of organs, forced labours of services.
"Shapechanging term" is what slavery is.
Origins of labour is an issue; e,g Nike does have it's roots in child labour, e.t.c, and they don't
examine it as an "issue". Perhaps we are providing jobs for the local economy, though. - Economic
model linked to controlling individuals in that "inseparable".
When you consider every item in the system has to derive from some form of labour somewhere; it is
problematic, and it's quite likely, that they come from slave conditions though we may not know of it.
Slavery has elements of contradiction & enigma about the way it functions.
CONTRADICTION;
Patterson -- "slavery is a social death".
Origination of slave:
- 15th Century. Came from the idea of Slavs -- those who live in the Balkans, Russians, Eastern
Europe, Central Asia. Terminology based on the idea of those groups who were treated.
TRADING at this point varied (was around 1490; Americas had not been discovered.)
esclavo, escravo, Sklave, esclave, schiavo -- stem from the Latin for Slav, sclavus. these words
Western European word for slave.
ANY RACE CAN BE ENSLAVED; NEAR ALL RACES HAVE BEEN, TOO.
-- Notary(financial cog) in 1490 in Sicily would note these individuals as "black Slavs"/sclavi negri
who were part of these traditional systems; this part of a whole range, not just the traditional mode,
and this is just one element in a wide extension of slavery.
17TH CENTURY: Corsairs traffic black slaves, but they also trafficked white slaves. WILL be used to
fill into the demand as is necessary. European powers attempted to stamp them out w/o much
success. "Modern pirates".

 Indentured labour as a system of

the 1600s. It included both white
and blacks.
The positions were, in fact,
virtually identical. Whites were
also captured by the Barbary
Corsairs.
Slavery is highly versatile as an
institution
It adapts
If an Englishman had been
asked what a
slave was in 1670 or 1710, he
would almost certainly have
referred to fellow white
countrymen who had been
seized on the English coast or
on ships by Barbary corsairs and
transported to Muslim North
Africa for heavy labor or
sometimes ransom.

SLAVE STATE CAN ALSO HAVE IT'S OWN DYNAMIC OF RIGHTS, OBLIGATIONS, AND EVEN
SOCIAL BOUNDARIES.
e.g -- Rome acnowledged slaves were important despite brutality, 2) slaves could also be free. Not
necessarily a life of brutality and hardship -- many were social, many earned money on the side.
Slaves had their own distinctions; freed slaves might be true social climbers.
MANUMISSIONS -- FREEING SLAVES MADE THE ROMAN EMPIRE FUNCTION IN A SPECIFIC
WAY. rome was renowned for this.
Disputed why tho shappened; might have been issues of relationships; slave might be released so
that use might be married.
* Economic self interest -- contrast to the "modern slave system" -- but people in a Roman slave
state and to some degree, American model -- were treated as economic assets and valuable.
WOULD BE AGAINST YOUR INTEREST TO DESTROY THEM + LOOKING AFTER SLAVES MIGHT
BE EXPENSIVE PAST A CERTAIN DATE, HENCE WHY ROMANS FREED THEM. Might have also
been affections, e.t.c, but primarily difficult to keep an expensive slave.
* Roman slaves wouldd function in economy and society, but also have associated incentives +
freedoms; you COULD buy your freedom. It was aspirational.
Manumission a useful incentive; ensured a slave's good behaviour -- either obtaining it or
buying it.
Orlando Patterson -- "social death"? WHAT slavery are we talking about + how does it function?
e.g "social paralysis" -- Ancient Rome was NOT socially paralysed. Limits in social engagements for
slaves & freepeople considering the hierarchy, but slaves were NOT limited. SLAVERY IN A
ROMAN CONDITION WAS A FINITE CONDITION -- A "PHASE OF TEMPORARY SOCIAL
PARALYSIS".
So many slaves being freed that this had become an integral part of the Roman slave state -people were expected to free slaves; became OBSESSED w. it. "Corrupted the fibre of the state".
Actually started undermining the state; so socially entrenched was freeing slaves.
Dionysus --

slave criminals and

prostitutes who used their illgotten gains to purchase
freedom from their masters.
(clearly he doesn't like them,
doesn't like the mobility of what
they can do.) not an issue of
equality; slave isn't equal

ever, but they can attempt to

slowly climb back up to a
lower rank? level-ish rank? it
can be, to a level, reneged?
Fall of Roman Empire was occasioned by this. "Diluted Roman stock through the process of
manumission."
Rome -- slave could be a social climber -- could be "upward & mobile."
Slavery is not what it seems; it may fall under categories than what you expect, what about
Portguese slavery in Brazil. EACH STATE + SYSTEM HAS IT'S OWN CHARACTERISTICS (OF
SLAVERY) THAT MAKES THE ABUSE OF HUMAN DIGNITY HIGHLY COMPLEX. BUT BECAUSE
OF OUR INTERNATIONAL FRACTURING THE WAY ABUSE IN ONE CONTEXT MIGHT NOT BE
SEEN AS ABUSE IN ANOTHER.
WHY DOES SLAVERY EXIST? - Kampmark: "It has this routes of effectiveness."
Slavery & human rights issues v. complex. Like torture -- "states will enslave those, too."
SLAVERY MAY BE INERADICTABLE & FAR AHEAD OF ANY LEGAL PRACTICE THAT CLAIMS IT
IS LEGAL .(I.E, ALREADY JUSTIFIED??)
When kept in a safe system, it may mitigate the harm that arises from the circumstances we usually
associate w. it.
Kevin Bales -- slavery today is worse; the modern system of slavery is worse precisely b/c it's
defined differently & attitudes towards labour have changed.
SLAVE DEBATE IN THE 1950S (legal historical), esp. re it's legacy.
18th centuries -- debates about whether it should be abolished. Vermont abolished it int he
1780s in comp to Southern states, where labour & slavery were considered fundamental &
effectively the same thing.
"industrious model in the north didn't require slaves, southern model did"?
Irrespective of whether it was urban or rural, slaves were still required; just called something else.
highly efficient models of labour DO lead to slavery. In our globalised, capital-free economy; highly
efficient models of labour DO lead to slave lives.
Human rights don't have to be matters of the innate goodness/interest of individuals. Also
demonstrates elements of self-interest; certain individuals would back/not back slavery depending
on the divide.People who DIDN'T make money from slaves would claim that it was BAD; also would
not have plantations. (so morality & rights, but also STABILITY HERE -- money)
What powers would States have and the Fed Gov have in terms of regulating slavery?
Abraham Lincoln went to war w/o any intentions of freeing the slaves of the south @ first. "can't
have a house divided against itself". Either ALL slaves or ALL free.
-- Abolishing slavery was "economic suicide."

Dreschler -- Lincoln's actions and the slave emancipation was an economic impairment.
"Slaves/slave states were not efficient when the Civil War took place in the 1860s" says many.
Others say they were doing better than their industrial counterparts up north.
The industrial model & the industrialisation were incompatible + contrary to the interests of the slave
state as an estate ("didn't fit".) BUT industrialisation & slavery go "very much hand in hand".
As industrialisation developed in 19th century abolition move net seemed irrational; they wanted to
"have their cake and eat it too". BUT they denied some of their essential interests when it came to
freeing slaves.
Counter factual argument; if Southern states had been allowed to pursue slave owning, they
would have spread all the way down + started a slave empire all the way up to the 21st C.
DEMONSTRATES WHY THE SLAVERY ARGUMENT IS A COMPLEX ONE: "Time on the Cross -Economics of American Negro Slavery (74)"
10 principal contentions that characterise the slave economy -- demonstrate how the law &
economics of slavery is so complex;
Defensible? - Was not an "irrational" system for owners, slave or land owners; it was rather, intrinsic
in the state that slavery was beneficial; slavery was beneficial to them. Slave owners were NOT
being inconsistent w. the interests of the state.
"Slave system was not economically moribund on the eve of the Civil War' -- no they were very
efficient.
Slave agriculture was not inefficient when compared to free agriculture; free agriculture not "better".
35% more efficient than the Northern system of family farming. (Slave agriculture may just have it's
row after all."
The typical slave field hand was not lazy, inept and unproductive. On average he was harder
working & more efficient than his white counterpart. Basis of that economy was that the blacks
were better than the whites; not necessarily as "slaves" but just as agriculture on a whole.
Argument that slavery would be incompatible in it's primitive form to an industrial system -- this was
far from being so. SLAVES EMPLOYED IN INDUSTRY COMPARED FAVOURABLY W. FREE
WORKS IN DILIGENCE AND EFFICIENCY. Problem here w. slavery is compatibility between
urbanisation & slavery; discrepenacies/ disturbances may occur here -- using these cheap
indentured labours instead of unionised groups. It's how they're utilised.
DIGNITY OF HUMAN BEINGS
Core feature -- dignity is trammelled when it comes to a violation of human rights. BUT the dignity of
slaves weren't as "trammelled" as we believe. The material conditions of the lives of slaves
compared favourably with those of free industrial workers. not to say these conditions were
good by modern standards; merely emphasises the hard lot of all workers, free or slave, during
the first half of the 19th C. Individuals did fare rather well; they weren't not entitled to keep
money -- they could use proceeds of the land to support themselves.
Free v.s slave - slaves weren't necessarily worse off. Sometimes, could be better off than the
free industrial worker. Within a slave state relative to a free state, also certain benefits
associated w. the very people who were meant to be victims.
Also the notion that slavery destroyed black family -- that they were "damaged because their
families were destroyed; behaviour on the plantation an issue." (those seeking reparations.)

The belief that slave-breeding, sexual

exploitation, and promiscuity

destroyed the black family is a myth.
The family was the basic unit of
social organization under slavery.
FAMILY UNIT CONSIDERED INTEGRAL TO THIS SYSTEM; WHOLE FAMILIES WERE
PURCHASED, NOT JUST ONE MAN, ONE WOMAN, PURCHASED AS A WHOLE FOR THE
PROPRIETARY INTEGRITY OF THE FARM. Land owners & slave owners knew it was in their
interest to preserve the societies.
That said, a society too united could be dangerous BUT it was still their interest to keep their slaves
happy. Yes; didn't have vote, were property, BUT they were still to be treated as viable units of
labour in the society created on a plantation.

-- Expropriation rate; a lot lower.

Individual slaves + slave families WERE PAID in a form; economic system where they are deriving
proceeds from the land they worked on. (e.g; Mary Beard on Roman slaves says they had
proprietary interest for the household, but that didn't mean their lives were limited. Treated as
humans.)

Over the course of his lifetime, the

typical slave field hand received about
90 percent of the income he produced
Far from stagnating, the economy of
the antebellum South grew quite
rapidly. Between 1840 and 1860, per
capita income increased more rapidly
in the south than in the rest of the
nation (when it was believed to have
shrunk)
SLAVERY IS SOMETHING WE'RE CONSTANTLY BATTLING B/C THERE ARE CERTAIN
APPEALS FOR IT.
MODERN SLAVERY;
*lacks the structure and clarity seen in previous societies. structural issues of rights can vary; those
that exist in one context may not exist in another. e.g th e global dispersion of sex workers is diff.
Slaves w/n industrialised societies -- American civil war said industrialisation was incompatible with
slavery; on the contrary, rapid urbanisation/situations where capital will flow into countries means

the presence of slaves will also be v attractive.

research has shown that there

are perhaps 3,000 household
slaves in the city of Paris alone
(also depends on how you
define it. au pair? doesn't mean
they have to be shacked in a
basement w. rat infested bed;
might even be an emotional
attachment. it's simply that the
individual who hires you controls
you.)
some 25 million or so bonded
labourers (primarily in South
Asia) -are working to pay off a
debt which can never be repaid;
(1956 -- one is tied by the debt.
you will always be tied by the
debt. e.g; providing labour for
highly segmented + caste driven
societies; traditional societies
being uprooted by modern
capital -- need to go and work

somewhere but they simply can't

manage how to exist here.)
a conservative estimate, there
are some 31 million slaves in the
world today;
Kevin Bales, Disposable People
-- (no longer wanted after a
certain point) minimal
entitlements, minimal rights,
threat of control, but once the
service performed your value
depreciates; you may be let go.
could even think of this in regular
work? when you're 18 + you
don't have the right skills, you
may simply be let go.

NO ASSUMPTIONS OF PROTECTION in modern society as it had once been in Roman

times, even in Southern states. Protected as an asset.
BALES LOOKING AT EXPLOITATION OF MASS MIGRATION OF LABOUR; RESURGENCE/
MOVEMENT OF RURAL LABOUR TO THE CITIES. EMERGENCE OF SHANTY TOWNS,
E.T.C, POPULATION EXPLOSION, BORDER ZONES -- SHANTY TOWNS TO RURAL
AREAS GLOBALLY.
institutions that claim to be against slavery/upholding conventions, BUT they will collude with
local economic interests to make money in traffickingg people --

When police sell the right to use

violence, they are effectively selling a
licence for hunting slaves. In the lean,
mean global economy, slaves equal

profits and violence ensures that the

profits keep coming. And slavery has
never been so lucrative.

CARTELS + self interested groups will also be attached to sell girls too; this is the danger of
it, it sprawls so far + so many will be involved out of self interest.

*lacks the structure and clarity seen in previous societies. structural issues of rights can vary; those
that exist in one context may not exist in another. e.g th e global dispersion of sex workers is diff.
OLD V.S NEW.

Old and new slavery forms (as discussed

by Bales in Disposable People)
Old legal ownership asserted (is
fundamental) new, its avoided (to avoid
blame) NO LEGAL OWNERSHIP; no
statute or book that says you'r downed,
but you're compelled to.
Old high purchase cost new, low
purchase cost (global market for slaves is
CHEAP; been an EXPLOSION of cheap
labour -- e.g, think migration zone
between Mexico and America. "Grey
zones have multiplied". once you're used,
you'll be discarded.)
Old low profits new, high profits
Shortage of potential slaves surplus of
potential slaves
Slaves maintained (Rome; you wanted to
buy good, high reputed slaves + you took
care of asset) slaves disposable (you just

wind them down)

Ethnic differences important ethnic
differences not relevant (gender? child?)

ONE FORM OF CRUELTY REGULATED (OLD), THE OTHER ISN'T (NEW).

MODERN SLAVES ARE CURRENTLY CHEAP + THERE'S A HUGE SLAVE MARKET,
TOO.

The average slave in Mississippi in

1850 cost about $60,000 in today's
money and profits fluctuated around
the 5% mark [slave was an asset].
The slave was an asset to be looked
after and bred, an investment that
could generate years of labour. This
meant long-term relationships and a
certain level of care. Today, a slave
is not worth keeping longer than is
absolutely necessary. With these
changes, our ideas about slavery
have become outmoded.
DIFFERENT TERMS FOR MODERN SLAVERY;

Contract slavery. A person is

enticed into a place of work
through promise of a contract
and proper employment but the
reality is that she (or he) is kept
as a slave, threatened with

violence, paid nothing, and yet a

contract makes this all appear
legitimate - the fastest-growing
form of modern slavery; -YOU'RE DISCHARGED +
DEALT WITH ONCE YOUR
CONTRACT IS OVER. LEGAL.
old slavery --

Chattel slavery. As in old

slavery, a person is born or sold
into servitude and the ownership
of another (Northern and
Western Africa and the Middle
East), but represents a relatively
small percentage of the total
slave population; BUT AS
BALES SAYS, OUTMODED/
DATED.
Modern slavery's defining factors; defined by threat of violence, used for the purpose of economic
exploitation + when you're no longer useful, you're disposed.
Is slavery inevitable? YES. ALWAYS INHERENT; WILL BE TOLERATED IF IT ALLOWS US TO
BENEFIT.
levels of exploitation vary depending upon which level of slavery are we speaking about?

POWERPOINT NINE
Humanitarian intervention: is there a happy medium, a "solution"? Or is there no way to do this?
A LOT OF HARM comes from those who want to do a LOT OF GOOD.
REVISION;
1) Master has the right to punish/threaten the slave.
2) "Natal alienation" of the slave. "Deied total rights of birth" -- on "paper" v.s in practice is diff.
(Consider slave system has it's own particular/peculiar appeal; e.g, Rome, slave systems could be
aspirational. Not necessarily wicked, fundamentally bad -- it IS based upon inequality, but it has it's
reasons; therefore Patterson's claim slave has no honours needs to be reconsidered.
Marx _ Engel (1846) thought it was based on kinship structure; tribal originations; rulers & those
who were ruled.
Slavery develops out of an economic system; that labour is fundamental, irrespective of old/
new slave system. (highly regulated interests when it comes to old slavery, in comparison to
the less regulated variation of the modern slavery.) (Question whether it should be an open
society w. legislation + regulations rather than an absolute prohibition.)
* Time on the Cross ('76) -- considered that slavery was more efficient; also, the states there did not
suffer a "social death". They THRIVED -- created social ties & bonds there.
E.G; those seeking reparations for "damaged families" find that their claims are less valid; slave
owners made a point of buying whole families.
Time on the Cross suggests economies that can urbanise can also have slaves; doesn't need
to just be agricultural. Where there is urban growth, slaves will follow: NOT just a plantation
model.
International Criminal Court +Rome Law: outlaws slavery. Crime against humanity.
UN Supplementary Convention on the Abolition of Slavery (1956): mentions variations upon
slavery; e, g, debt slavery -- can never be repaid. issue w. modern slavery here; they bind people for
no written reason until they become valuable assets.
Old v.s new slavery:
--> Disposable. N.
--> Can be anywhere. N.
--> "present across boundaries".
--> COST means that there can be a "huge pool of surplus labour".
--> Slave states used to prize slaves as assets; not anymore.
Capitalist interests; new slavery sees an expansion of the unregulated labour market.
--> Ethnicity doesn't matter; CORPORATE interest does.
(Bales, Disposable People.)
-- HUMANITARIAN INTERVENTION
Coolidge, 1929 -- "Perhaps one of the most important accomplishments of my administration has
been minding my own business."
-- AT THIS TIME, US WAS NOT PART OF THE LEAGUE OF NATIONS; emphasis on what is termed
"isolationism". Didn't want to get involved in foreign security nations. (look at League of Nations.)

"Collective self security" is what the states attempted to do -- would gang up + attack another if
they were considered to be in breach.
At this time, US did not want to back Europe interests; didn't want to back Colonial interests in case
they wanted to "put down" the rebellion in parts of Africa.
-- CAN YOU BE HUMAN IN A HUMANITARIAN MILITARY CONTEXT?
-- intervention might be economic, or aid, or in the form of medical supplies.
BUT when humanitarian intervention is spoken about in states today, it's usually in a military form.
Frank & Rodley 1973, post Bangladesh :

[A] usable general definition of

'humanitarian intervention' would
be extremely difficult to
formulate and virtually
impossible to apply
rigorously ....
Bangladesh -- used to be East Pakistan; typified by a Bangoli population. In 1971 certain league
won power in East Pakistan, West Pakistanis concerned about autonomy + initiated military action;
systematic assault on the population. Then Urugunday initiated an intervention, claiming it was due
to humanitarian intervention.
Difficult to tell; ALSO odd when a country declares it's under humanitarian intervention.
Constituional problem -- what's intervention? Are they specific intervention? target some units;
punish certain units? What are the limits?
1921, Stowell (must be in relation to world war one)

reliance upon force for the

justifiable purpose of protecting
the inhabitants of another
state from treatment which is
so arbitrary and persistently
abusive as to exceed the
limits of that authority within

which the sovereign is

presumed to act with reason
and justice. -- ALMOST A
NATURAL REASON CONCEPT.
CERTAIN ENTITLEMENTS A
STATE'S POPULATION IS
ENTITLED TO; AN ABUSE OF
THEM IS WRONG. THERE IS A
NOTION OF RESPONSIBILITY
TO PROTECT
Is it useful to identify something for humanitarian intervention; e.g, climactic disturbance or
environmental catastrophe qualify as a "human catastrophe" that requires intervention.
--> E.G CHERNOBYL IN SOVIET UNION, which resulted in massive radioactive leaks; posed illness
throughout the years, e.t.c, couldnt drink milk, 't what point is a party entitled to go in?
-- FORMS
"Rescuing" the citizens -- e.g. if Australians were holed up in Indonesia -- if govt was to rescue them
it'd be to save them for distress & for fear harm would be done to them.

Sometimes, that argument has

been used to justify the rescue
of a states nationals in another
country for reasons of legitimate
self-defense or an emergency
to save lives, or the principle of
non-derogation of a states right
to protect its own integrity. IF

YOU ARE UNDER THREAT/

HARM IN ANOTHER
COUNTRY, IT'S LIKE
THREATENING AUSTRALIA
ITSELF. "Non-derogation of a
state's right to protect it's
integrity."

TERM OF HUMANITARIAN IS AVOIDED HERE.

Where are the limits; where do you start + stop? Embargoes? E.T.C? Military? When it comes
to rescue ?

(1) imminent threat of injury to

nationals;
(2) failure or inability on part of the
sovereign to protect those
nationals;
(3) measures of protection
confined to objects of protecting
them against injury: see C.H.M.
Waldock, The Regulation of the
use of Force by Individual States in
International Law 82 (1952)
Recueil des cours 455, 469. -- I.E,
YOU CAN'T INVADE A
COUNTRY + THEN PROCEED

TO RECONQUER IT ON THE
PREMISE THAT THERE'S A
SMALL GROUP OF NATIONALS
YOU WANT TO PROTECT:
DISPROPORTIONATE.

HOWEVER, CITING THE ARGUMENT THAT YOU ARE RESCUING THIS GROUP OF
PEOPLE BEFORE ATTEMPTING TO DISABLE THAT COMMUNITY HAS OCCURED
BEFORE.

SOMETIMES AN ACT OF "LEGITIMATE SELF DEFENSE" -- YOUR NATIONALS ARE

REFLECTIONS OF THE STATE'S SOVEREIGNITY; OUR ABILITY TO NOT BE IMPEDED.

ORIGINS OF HUMANITARIAN INTERVENTION IS NOT NEW

Thomas Aquinas --

a sovereign had the right to

intervene in the internal affairs of
another when the latter mistreats
its own subjects beyond the limits
of what seems acceptable" -- a
question of degree.
Grotius; "father of international law" [systematised it in texts] [16th C]
REITERATES the idea of humanitarian intervention.

When a despot should inflict

upon his subjects such
treatment as no one is
warranted in inflicting, the
exercise of the right vested
in human society is not

precluded
-- COLLECTIVE RIGHT THAT OTHER STATES HAVE WHEN A LOCAL DESPOT/TYRANT
DECIDES TO OPPRESS THEIR OWN PEOPLE. ALMOST AN INALIENABLE RIGHT; AN
OBLIGATION.
de Vattel (1758) (Aquinas, Grotius + de Vattel; all natural law). Reflects a general sense of where
this need for intervention stems from.

If a prince, by violating the

fundamental laws, gives his
subjects a lawful cause for resisting
him; if, by his insupportable tyranny,
he brings a national revolt against
him, any foreign power may
rightfully give assistance to an
oppressed people who ask for its
aid -- EXAMPLE OF EXTERNAL
HELP PROVIDED FOR LOCAL
REBELLION. WERE SUGGESTION
INTERVENTION COULD BE USED
TO STOP HUMAN RIGHTS
PROBLEMS; LOCAL RESISTANT
DEMONSTRATES THAT THERE
ARE ISSUES + IT'S INCUMBENT
ON OTHER COUNTRIES TO
HELP.

19TH CENTURY:

Russia intervening on behalf of Christians in Bulgarian, Turkey, Bosnia + Herzegovina in 1870s.

For Russia, the fact that their (Orthodox) Christian nationals (esp Slavs) were being persecuted was

cause for intervention. As Russians are Christians too, they can claim them as part of a national
identity, and also part of their "interests".
HUMANITARIAN INTERVENTION;
Oppenheim, 1905;

its own subjects or part thereof with

such cruelty as would stagger
humanity -- ONE'S CONSCIENCE
OUGHT TO BE OUTRAGED, public
opinion of the rest of the world
would call upon the powers to
exercise intervention for the
purpose of compelling such a state
to establish a legal order of things
within its boundaries sufficient to
guarantee to its citizens (safety) an
existence more adequate to the ideas
of modern civilisation."
- MIND: NO SPECIFICS AS TO
HOW INTERVENTION SHOULD
OCCUR; COALITION OF PEOPLE?
WILLING STATES? E.T.C?

Shawcross -- 1946, from the Nuremberg Trials/on the NT -- when the rights of were trampled upon
this would entitle humans to intervene. USES the term "the right of humanitarian intervention".

[T]he right of humanitarian

intervention, in the name of the
Rights of Man trampled upon by
the State in a manner so

offensive to the feeling of

Humanity, has been recognised
long ago as an integral part of
the Law of Nations

- STILL SOME MISHAP ON WHETHER IT'S A RIGHT OR AN OBLIGATION. STILL DOESN'T

SAY HOW IT OUGHT TO BE DONE.
SUSPICIONS OF INTERNATIONAL HUMANITARIAN INTERVENTION HAVE NOT PASSED;
1986 -- British study on how humanitarian intervention was considered + how it ought to be applied
-- many concluded that the majority of contemporary legal opinion was against the existence of any
right to humanitarian intervention.
1) UN Charter + body of international do not specifically incorporate the right. (THIS IS DUE TO
VAGUENESS.) IRONIC considering older lawyers say it does exist, but point that many others don't
believe it.
2) State practice for the last 2 centuries since 1945 suggest only a FEW cases of genuine
humanitarian intervention if at all. [on closer inspection, doesn't seem it]
3) On "prudential grounds" -- NOT WISE to havve such a right -- abusing such a right argues against
it's creation. CREATES A DANGEROUS PRECEDENT. (British Yearbook of international law,
1986.)
e.g; League of Nations institutionalised morality in an unacceptable way; ordered states to attack so
called outlawd regimes.A 'trick" + dangerous -- once you have these humanitarian interventions +
wars for the name of rights, you also have wars of exterminations. Schmitt -- humanitarianism would
be used to justify extreme wars. (Iraq?)
BANGLADESH CASE;

1971 allegations by India that

Pakistan was alleging massive human
rights violations of East Pakistan/East
Bengal. STILL don't know how many
people died.
INDIAN INTERVENED MILITARILY.
Due to this, (West) Pakistan suffered a
heavy loss + East Pakistan separated;
became Bangladesh.
then minister;

 the mother state has irrevocably lost

the allegiance of such a large
section of its people and cannot
bring under its sway, conditions for the
separate existence of such a state
comes into being.
At the point India intervened there
WASN'T meant to be/going to be
interventntion.Suggested India
intervened on behalf of it's
nationals.
Long-running theme of allegiance;
once a group no longer owes
allegiance to the group they belong to,
they're allowed to revolt + receive
assistance from the outside.
PAKISTANIS say that this was a
security intervention; East Pakistani
security was getting "dangerous" + an
intervention was necessary.

TO INTERVENE OR NOT;
-- Sovereignity; do we accept it in it's guise, or is it a minimised/reduced version.
-- State sovereignty challenged; we live in a POST WESTPHALIAN SOCIETY w. international
interests + laws. (i.e; STATES ARE NO LONGER SUPREME AUTHORITIES WHO MAY
DETERMINE ISSUES OF RIGHTS + INTERESTS FOR IT PEOPLE. IS SOVEREIGNITY STILL
QUALIFIED? THERE'S NO SUCH THING AS EQUAL STATES, AFTER ALL.)
May now be restricted by this doctrine of humanitarian intervention.
SOVEREIGNITY STILL REINFORCED IN THE UN;

 The UN Charter, Art 2(7):

Nothing contained in the
present Charter shall authorize
the United Nations to intervene
in matters which are essentially
within the domestic jurisdiction of
any state.
-falls into the same sort of UNSC
idea; does it threaten any other
force?
furthermore, territorial integrity is
paramount. security council
resolution needs to be granted to
authorise intervention.

Kofi Annan, UN S-G; presided over UN Human Rights drafting "one of the more notable
revolutions".
One idea he proposed was the responsibility to protect doctrine; led to human security.
Kosovo Interventionin 1999 -- now a province that the Serbs claim it as the fundamental birthplace
of their identity. Battle of the Blackbirds. It was Serbian v.s Kosovo Albanians -- saw an intervention
by NATO forces; aerial bombing campaign that subjected to Serbia to a "considerable period of
tactical bombing". SUPREME AERIAL FORCE TARGETING SPECIFIC POINTS.
Others; "justified intervention to prevent massacre on the ground."
Annan defended the Kosovo Intervention --

if humanitarian intervention is,

indeed, an unacceptable assault

on sovereignty, how should we

respond to a Rwanda, to a
Srebrenica (Bosnian Muslims)
to gross and systematic
violations of human rights that
affect every precept of our
common humanity? -- I.E, what
do we do then?
Kosovo Interventionin 1999 -- now a province that the Serbs claim it as the fundamental birthplace
of their identity. Battle of the Blackbirds. It was Serbian v.s Kosovo Albanians -- saw an intervention
by NATO forces; aerial bombing campaign that subjected to Serbia to a "considerable period of
tactical bombing". SUPREME AERIAL FORCE TARGETING SPECIFIC POINTS.
KOSOVO;
Tried to prevent the continued ethnic cleansing of Albanians in Kosovo. Involved removal +
relocation of 10s/100,00s of Kosovo Albanians from their homes.
Argument made by NATO Bombing (Mar 24, 1999) -- NO PRIOR UN SCAUTHORISATION -(considering that Russia + China were members of the UNSC, they would have vetoed.)
ORIGINALLY HIGH TECH BOMBING; AERIAL STRIKE ON STRATEGIC TARGETS IN KOSOVO,
even tv networks + SERBIA ITSELF. (ground troops came later.) (Wasn't focused no Kosovo;
seemed almost punitive towards Serbia.)
Missile hit the Chinese embassy in Belgrave + killed three Chinese people in there. Said to be a
mistake, but how do you intervene this? It crippled the infrastructure of an enemy state.
-- Humanitarian intervention should be restrained as much as possiblee; meant to minimise
human loss, that said, WEAPONS WERE V. TECHNICALLY ADEPT.
-- If there was no UNSC resolution, it might impune the legality of any action, even IF it was deemed
humanitarian.

It was in contravention of
international law UN Article 53:
no enforcement action shall be
taken under regional

arrangements or by regional
agencies without the
authorization of the Security
Council
Lincoln called it the fist humanitarian war; the beginning of humanitarian intervention.
KOSOVO PROBLEMS;
- e.g, civiilans; only certain groups may profit here, e.t.c. who are you fighting against?
BIG WINNERS HERE; Kosovo Liberation Army, as NATO was bombing their enemies (Serbian
forces). BUT the KLA also ocaused a fair share of destruction; should NATO have intervened here,
too and helped out?
KOSOVO DEFENDERS;
- Tony Balir former Brit President, Clinton + Kofi Annan; 'new norm of international intervention".

Justified in cases where violent

repression of minorities exist,
involving crimes against
humanity, ethnic cleansing,
violation of the Geneva
Conventions.
THEREFORE trumps domestic
jurisdiction of states despite
Article 2 (7). "Kosovo Norm"
supersedes domestic jurisdict.
therefore, now in a postWestphalian order.


BUT?

CRITICS:
- Sets a dangerous precedent (Yearbook, 86.)
- Nullifies the veto of the major powers (I.E; UNSC) when it comes to the Kosovo Precedent.
- Enables states w/o formal authorisation from the SC to attack another state. If THIS is the case,
what role does an intl system have if states are allowed to attack others on the basis of humanitarian
intervention?
KOSOVO: SINGULAR?
ARGUMENT THAT WE SHOULD NOT DRAW A GENERAL CONCLUSION.
Bruno Simma, 1999 -- singular exercise of force. We should not, however, change the rules simply
to follow our humanitarian impulses (saw it as dangerous); we should not set new standards only
to do the right thing in a singular case. (e.g; do right in Kosovo, but don't do it the same.) The legal
issues presented by the Kosovo Crisis are particularly impressive proof that hard cases make bad
law." no way of replicating it; also so open it is susceptible to abuse, a la the Yearbook.
RETROSPECTIVE; KOSOVO MIGHT HAVE BEEN JUSTIFIED.

By 1999, the Security Council had

founded three norms of
international law: (a) the right to
intervene for humanitarian
reasons;
(b) international criminal courts eg
Rwanda, Yugoslavia; and
(c) supervision of free elections or
interventions designed to promote
social, political and economic
reconstruction within a country
process known as consolidation of
peace

-- IE UNSC AT THIS POINT WAS INTERESTED IN THESE "PROJECTS" OF POTENTIAL

HUMANITARIAN INTERVENTION, BUT ALSO THE IDEA OF RECONSTRUCTION +
PUNITIVE EFFORTS.
Kosovo Crisis -- where does it sit in international law + rights? (the development of)

ushered in some sort of humanitarian lust. such humanitarian neo-interventionism unclear where it
begins/ ends
e.g jurist Legaut 2000 --

we are now at the intersection

of two phenomena: how to assure
human security in the context of
majorization of minorities?
- paradox of international
intervention v.s protecting the
safety of "minorities"/national
groups. (e.g; how to protect both
majorities + minorities?)

IS SOVEREIGNITY LIMITED?
post-Kosovo, International Commission on Intervention + State Sovereignity in 2000 created, to
examine the limits of intervention + when it was required. RESPONSIBILITY TO PROTECT AS A
DOCTRINE IS THE RESULT OF THIS DOCUMENT.

The theme of the report The

Responsibility to Protect the idea
that sovereign states have a
responsibility to protect their own
citizens from avoidable catastrophe
from mass murder and rape, from
starvation but that when they are
unwilling or unable to do so, that
responsibility must be borne by the
broader community of states.

Report of the International

Commission on Intervention and State
Sovereignty (2001)

- NOT A RIGHT TO INTERVENE ANYMORE, BUT NOW AN OBLIGATION; A

RESPONSIBILITY. NOT STATES NEEDING TO INTERVENE B/C THEY HAVE A RIGHT; IT'S
A NECESSITY, AN OBLIGATION. SHIFT IN LANG.

Commission agreed:
-- SC authorisation must be in all cases sought prior to any military intervention action being carried
out.
-- Formal request for such authorisation or have the Council raise the matter on it's own initiative.
-- OR the S-G might raise concerns that intervention is required under Article 99 of the UN Charter.
-- Commission STILl trying to be conservative here.
-- Security Council SHOULD DEAL PROMPTLY (speed) w. any request for authority to intervene
where there are allegations of large scale loss of human life or ethnic cleansing.
-- e.g Kosovo Interntion should have occurred earlier to prevent the amount of catastrophe, although
some say that it accelerated the ethnic cleansing; those Albanians being expelled were killed
quicker/expelled quicker.
-- Needs to seek adequate verification of facts or conditions on the grounds to determine if
humanitarian values had been sacrificed; not just from the sky or from word of mouth. that might
support a military intervention. (SHOULD ALSO BE EXAMINED WITH EVIDENCE, IN OTHER
WORDS.)
To prevent the PP/P5 of UN from misusing their veto, suggested a code of conduct in dealing with
human catastrophe (article 51); could not misuse their veto to prevent action from taking place.
IF SC does not reaction, potential intervention via the General Assembly. (they can only make
recommendations thug; a strange idea.) (Uniting for Peace.)
Use of regional organisations (sugg. 53) such as NATO, though controversial -- considering
Kosovo. Difficult to police; can be misused. E.G Kosovo but only AFTER NATO had intervened did
the UNSC approve what happened. "Dangerous" -- still doesn't allow formal elements of the UN to
deal with what's appropriate, what's not.
R2P's suggestion for LIMITS:
-- Operation terms for responsibility to protect will differ from military language used when fighting
for gain. e;g;
-- Objective is to protect populations, not to defeat, neutralise or destroy the enemy.
-- Inflict as minimal harm as possible to the civilian population.
-- Minimise damage to state to enhance recovery prospects in post-conflict phase. (IDEAL CASE IN
HUMANITARIAN INTERVENTION IS THAT IT'S TARGETED, SPECIFIC, AND MINIMISES HARM SO
THAT THE STATE CAN RECOVER QUICKLY.)
Difficult because when implementing the R2P, it doesn't work v. well -- e.g, think of Libya.
Is it feasible? R2P feasible at all?
Summary of Report:

"If the international community is

to respond to this challenge, the
whole debate must be turned on

its head. The issue must be

reframed not as an argument
about the 'right to intervene' but
about the 'responsibility to
protect.'" -- CONSIDER R2P IN
2000, AGAIN; IT'S TO
PROTECT SOMEONE ELSE. It
shouldn't justify broader strategic
interests, although it's hard.
In 2005, when the responsibility
to protect doctrine was
incorporated into UN doctrine,
environmental disasters had been
dropped as a reason for
intervention. (Although
commission said that the
international community could
intervene if the state failed in it's
responsibility to protect it's
population.)

"Responsibility to protect a watershed moment, marking the end of a 350-year period in which
the inviolability of borders + the monopoly of force within one's own borders were sovereignty's
formal hallmarks." (against UDHR article 2(7) + Westphalian society)
Look up Geneva Convention , International Crimainal Court, League of Nations + Rome thang.
Look up organisations; those that can create international criminal courts.

WHAT ABOUT LIBYA?

-- NATO APPEARS HERE TOO.
- EXAMPLE OF R2P
-- Said it prevented an imminent massacre.

Libya case study in 2011

Responsibility to protect used to
JUSTIFY ATTACKS HERE
Preventing massacre in
Benghazi (imminent!)
The use of No-Fly Zones (to
prevent Libyans)
Were the NO-FLY ZONES to
prevent attacks from Libya.
Was the purpose of the NATO
led enforcement of the zones
regime change or genuine
limited intervention? The result
was, but the initial stated goals
did not state that; suggested it
was simply searching for
humanitarian intervention.
David Rieffs summation may be
correct: there are no

humanitarian solutions to
humanitarian problems:

POWERPOINT TEN
"most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either
participants OR victims of conflict.
-- Revision; humanitarian intervention
Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a
conceit when they say it's rescue/they intend to save other lives.

Sometimes, that argument has

been used to justify the rescue
of a states nationals in another
country for reasons of legitimate
self-defense or an emergency
to save lives, or the principle of
non-derogation of a states right
to protect its own integrity
Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of
the sovereign to protect those nationals + measures of protection confined to objects of
PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE
THE COMMUNITY.
('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik
interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected.
Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated,
we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first
humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo
suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous
precedent.

Commission:

The issue must be reframed not

as an argument about the 'right
to intervene' but about the
'responsibility to
protect.'" (language shifted).
brings out the humanitarian
element more; right to intervene
sounds sovereign; responsibility/
obligation sounds like a need:
NOT an imposition.
Issue was still determining
where humanitarian intervention
fit into the Charter since 2005;
adopted later, although
environmental interests were
redacted.

HUMANITARIAN INTERVENTION;
-> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian
population & minimise damage to states so it can recover.
CRITICS;
Marx -- human rights an illusion.
Bentham -- rights are nonsense upon stilts; require legality.
Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as
one to justify power." (think of this in relation to U.N)
Chomsky: "humanitarism has become an ideology of sorts." (critical of Kosovo.) Post Cold War,
could be used as an excuse to interfere in the affairs of other states. EG intervention to punish

"naughty states".
CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to
whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism."
Left; "Should have occurred".
Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some
on the right who also accept it. Previously on the "left" of the politics; these days, some of the most
conservative.
WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist.
Bush argued that it was a humanitarian mission to remove Saddam Hussein.
Massively damaging though.
HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical.
Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement."
Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be
penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE
PART OF THIS MIX.

Ignatieff: necessity may require

us to take actions in defence of
democracy which will stray from
democracys own foundational
commitments to dignity. TO DO
TERRIBLE THINGS FOR A
RIGHTEOUS CAUSE.
Gearty concerned; Ignatieff
suggesting that it's okay to
invade a country b/c the country
has a tyrant at it's head; we can
torture an individual b/c that

individual will be useful to us.

Says you can't call it
humanitarian intervention if
you're engaging in the same sort
of evil; it's hypocritical.
Ignatieff; you have to engage in
acts of lesser evil to stamp out
greater evil.
GEARTY from London School of
Economics; attacks the
righteousness of the cause that
justifies these evils.
ON IGNATIEFF;
Michael Ignatieff has been useful to the
US government as it has tried to promote
democracy in the middle east. He brings
to this unofficial job a special, doubleedged approach: he provides
conservative arguments to the liberal
audience and liberal alibis to the
conservatives: Mariano Aguirre,
Exporting Democracy, Revising Torture,
http://www.opendemocracy.net/democracyamericanpower/
jefferson_2679.jsp (JUSTIFIES THE USE OF
FORCE; JUSTIFIES IT IN INVADING

COUNTRIES; provides an alibi + therefore an

alibi for humanitarian imperialism.)

Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being
"sold" to justify the use of force. You want to sell it to the public; by justifying what's happened;
say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was
marketed v. effectively.
Simly another form of "liberalism" which has been used for example by President JFK for
interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America,
prop up those who are.)
Bricmont; everything to do with the IMAGE of human rights.
HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a
weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a
country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level.
Doctors sans frontires; trying to combine the adventurism of communism w. that of
humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary
to a doctor's interests. Supported Kosovo + Libya intervention.
Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become
humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a
"morally better war".

Foley: bodies that were

established to alleviate human
suffering could, on occasion, be
given the task of making the case
for war. (e.g Amnesty
International; find a reason that
there's a breach. Perhaps they
think war is necessary in order to
create a better world? Perhaps
they think war is necessary in
order to create a better world.)

SAVE DARFUR;
- How should justice in the international community happen here?
Punish rogue states in the idea of a human ideal.

Mahmood Mamdani, Saviours and

Survivors (2009): the Save Darfur
lobby demands, above all else,
justice, the right of the international
communityreally the big powers in
the Security Councilto punish
failed or rogue states, even if it be
at the cost of more bloodshed and a
diminished possibility of
reconciliation. In its present form,
the call for justice is really a
slogan that masks a big-power
agenda to recolonize Africa. -(whites can democratise; turn it
into a clone of you. this is a clear
possibility.)
(uses humanitarianism to further
border goals; topple the dictator,
secure assets. simply a
smokescreen that lets you do
something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS
PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE.
CHILDREN'S RIGHTS
General acceptd principles for kids --

NOT TO BE INVOLVED IN WAR + CONFLICT.

TO HAVE DECENT HOUSING, HABITATION + SANITATION.
TO HAVE DECENT EDUCATION.
TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN.
TO BE ADEQUATELY FED.
Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/
rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or
torture; juveniles shouldn't be tortured or held of extended periods of time/detention.

Convention on the Rights of the

Child (1989) -- also part of an
interlocking laws + rights
International Covenant on Civil and
Political Rights (ICCPR);
International Convention on the
Elimination of All Forms of Racial
Discrimination (ICERD);
Convention Against Torture and
Cruel, Inhuman and Degrading
Treatment or Punishment (CAT),
Convention on the Elimination of
All Forms of Discrimination against
Women (CEDAW)
MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE
CHILD. (1989).
- one of the most signatures of all time.
- Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the
treaty. also has a follow up monitoring mechanism that requires nations to make reports on their
progress.
-- some progress HAS been made to obtain it's goals.
Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development
+ respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration.
as a PRIMARY consideration.

- right of all children to express their views. BUT at what point is a child sufficiently aware to consent
to procedure? (sexual consent, for example, is at 13.)
- right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v.
Ferguson instance.)
rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int
arms of customary international law. BUT not interns of international agreements guarding their
welfare. (i.e; there are agreements, expectations on what should be done, but no legal
ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the
Child 1989.
- CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW
ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE
DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER;
E.G, THE UDHR.
CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES.
CRC;
Puts an emphasis on monitoring, tells all it's signatories it has to do this.
e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights
contained in the Crc, the progress that has been made in protecting & promoting these rights & the
obstacles + problems that have been encountered in implementing the CRC.
(i.e the length of how it's being complied to.)
Refugee problem in Australia is an example of where we're not complying; children in these
facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that
is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own
reports.
AUSTRALIAN'S COMPLIANCE;
- Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into
account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT +
PROMOTE CHLDREN'S RIGHTS.
HREOC can make recommendations + note breaches, but they're not enforceable
Power of recommendation + power of shame is, to some degree, sufficient enough. To have an
official law-body in the HREOC would mean that the Cth would be more resistant than it currently is.
Same goes for the way we've signed up for the genocide convention, but we don't have law ratified
here.
YES; there are legitimate expectations of what human rights should occur here, considering that
we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law
Act, for example.

Specific rights of protection at

IHRL

 Article 37(c) of the CRC states

that [e]very child deprived of
liberty shall be treated with
humanity and respect for
inherent dignity of the human
person, and in a manner which
takes into account the needs of
persons of his or her age -I.E, DETENTION SHOULDN'T
OCCUR.
Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v.
conspicuous; Sierra Leone + Congo.
CRC says that this is a crime to conscript children. International law prohibits the use of children in
war. Seeks to protect children from hostilities.
What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer
their surfaces in a truly legal way?
When they've served in these armies, argument that there's a "mutual process of brutalisation".
So they're dehumanised, but war's also made them killers.
Should neither be enlisted nor be the victims of war.
THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little
rats". -- stamp out the race.
International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law
to enlist these soldiers + make them fight in a war.
CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence.
Protection against torture (torture convention out laws this too) + any other cruel, inhuman or
degrading treatment or punishment.
Emphasises family reunification; if separated, then they will try to reunify the child.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)

Article 38 of the CRC [1986]

calls on States Parties to apply

the rules of international

humanitarian law that are
relevant to the child, and to take
every feasible measure "to
ensure protection and care of
children who are affected by
armed conflict." - this is for
ALL signatories. even if one of
these signatories is involved
in war; even if it's internal
conflict or no. BUT some of
the most brutal instances of
these violations are internal.
Article 39 of the CRC refers to
the need for physical and
psychological recovery and
social reintegration of child
victims. (try to help the damaged
child back into society. "no," she
said. "i'm too damaged.")
BUT CHILDREN WHO ARE
INFLICTED BY CONFLICT

CAN HAVE AN AMOUNT OF

TRAUMA THAT'S DIFFICULT
TO REINTEGRATE THEM
WITH. ARE THERE THE
MEANS + FACILITIES TO DO
THIS? OBLIGATION MORE SO
RIGHT.

How can we tell what happened to

us? There are no words to describe
what we have witnessed. What we
saw, what we heard, what we did, and
how it changed our lives, is beyond
measure. We were murdered, raped,
amputated, tortured, mutilated, beaten,
enslaved and forced to commit terrible
crimes. - Truth + Reconciliation
Commission Report for the Children of
Sierra Leone in 2004. BOTH TURNED
INTO PERPETRATOR +
RECIPROCANT OF VIOLENCE.
'Children are the greatest fanatics of
all.' - Give em a gun and the
facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)
ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?

Harder with children; both brutalised AND being brutalised.

International community doesn't have a consensus on what age a child is held criminally
responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE When can they be
tried?
CRC defines a child as anyone under 18. Some specific provisions in international conventions;
e.g, don't unlit anyone under 15 to fight in a war.
CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital
punishment or life mprisonment without possibility of release (what would it be like if a child was on
trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?)
STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS;
e.g

[The] exclusion of children from

the ICC jurisdiction avoided an
argument between States on
the minimum age for
international crimes: -- Office
of the Special Representative of
the Secretary-General. We
simply don't really know.
Age of 15 usually the measure as to whether allowance should be made for children in conflict;
whether they can enlist.

If a child under the age of 15 is

considered too young to fight,
then he or she must also be
considered too young to be held
criminally responsible for serious
violations of IHL while

associated with armed forces or

armed group (needs to match
up, otherwise unfair. those
considered children need to be
treated as victims. needs to
match up.)
(crisp, sparse language +
unapologetic, unremitting,
unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful
working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them.
Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR
CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 1998.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT
RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES
FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children.
THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG;
look this up..)
INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international
crimes, directly or not.
children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids
as victims.
other measures to supplement strictly legal ones;
- tribunals, restorative models, commissions, committees to investigate whether human rights have
occurred
Truth and Reconciliation Committees in Sierra Leone that deals with child testimony.
Do their best to uphold the CRC; complies best it can w. the principles of the CRC.
CASE LAW;
(some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions +
wasn't responsible)
e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic
Republic of Congo in Prosecturo v. Lubanga.)

 Thomas Lubanga Dyilo found

guilty on charges of conscription
and enlistment of children under
the age of 15 by using them to
participate actively in the ongoing
armed conflict in Ituri. OFFENCE.
Judgment is relevant since
according to the Trial Chamber it
extends to any armed group
within the context of a noninternational armed conflict and
within the ambit of international
humanitarian law.
-- i.e. does not STRICTLY
SPEAKING HAVE TO BE AN
INTERNATIONAL ACT; CAN BE
LOCAL. CAN HAVE SOME
INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT
DOESN'T HAVE TO
BE.DOMESTIC CONFLICT BUT
INTERNATIONAL
HUMANITARIAN LAW STILL

APPLIES.
The Chamber held that the
offences of conscripting and
enlisting are committed at the
moment a child under the age of
15 is enrolled or joins an armed
force or group, with or without
compulsion (Para.
618 Lubanga Judgment). [I.E; if
they'd enlisted themselves, didn't
matter.]
- Child's ACTION was the critical
thing; not the mental or their
motives. WHAT DOES THE
ADULT DO?

Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is
it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict
situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be
informed or aware.
How do you prosecute those responsible for a crime if the crime's not PERCEIVED as a crime by
other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU
PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering
that not many in Sierra Leone consider it a crime; really, is quite normal?

Is a child in law different from a

child in culture? CULTURAL

CONDITIONS -- might in fact,
CAUSE INTEREST OR IT
JUST /OCCURS/?

Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w.
war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor
v. Norman)

Norman argued that the

Special Court could not try
him for recruiting child
soldiers because it was not a
crime under international law
during the years that the
Prosecutor cited, beginning
with the Special Courts
jurisdiction in 1996. [ LAW
WASN'T VALID YET ???]
Over the years is that an
assumption/expectaton that
enlisting child soldiers is bad;
has been no specific case ON
it, but it's become a norm not

to criminalise. [FIRST OF IT'S

KIND, THE NORMAN CASE.]
Court: had become
international custom and law
even before 1996; e.g the
CRC, Geneva Convention,
African Charter on the Rights
+ Welfare of the Child, e.g.

NORM NEED NOT BE EXPRESSLY STATED IN AN INTERNATIONAL CONVENTION FOR

IT TO CRYSTALLZE AS A CRIME UNDER CUSTOMARY INTERNATIONAL LAW.
Lubanga (2012, Congo); child's mental state didn't matter, nor did it matter if the action wasn't
considered a crime in their country; adult was still to be prosecuted.
Norman: didn't matter if there were no laws on it; anit-child soldier recruitment was already
considered a crime under customary international law.

POWERPOINT ELEVEN;
"most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either
participants OR victims of conflict.
-- Revision; humanitarian intervention
Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a
conceit when they say it's rescue/they intend to save other lives.

Sometimes, that argument has

been used to justify the rescue
of a states nationals in another
country for reasons of legitimate
self-defense or an emergency
to save lives, or the principle of

non-derogation of a states right

to protect its own integrity
Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of
the sovereign to protect those nationals + measures of protection confined to objects of
PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE
THE COMMUNITY.
('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik
interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected.
Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated,
we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first
humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo
suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous
precedent.
Commission:

The issue must be reframed not

as an argument about the 'right
to intervene' but about the
'responsibility to
protect.'" (language shifted).
brings out the humanitarian
element more; right to intervene
sounds sovereign; responsibility/
obligation sounds like a need:
NOT an imposition.
Issue was still determining
where humanitarian intervention
fit into the Charter since 2005;

adopted later, although

environmental interests were
redacted.

HUMANITARIAN INTERVENTION;
-> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian
population & minimise damage to states so it can recover.
CRITICS;
Marx -- human rights an illusion.
Bentham -- rights are nonsense upon stilts; require legality.
Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as
one to justify power." (think of this in relation to U.N)
Chomsky: "humanitarism has become an ideology of sorts." (critical of Kosovo.) Post Cold War,
could be used as an excuse to interfere in the affairs of other states. EG intervention to punish
"naughty states".
CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to
whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism."
Left; "Should have occurred".
Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some
on the right who also accept it. Previously on the "left" of the politics; these days, some of the most
conservative.
WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist.
Bush argued that it was a humanitarian mission to remove Saddam Hussein.
Massively damaging though.
HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical.
Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement."
Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be
penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE
PART OF THIS MIX.

Ignatieff: necessity may require

us to take actions in defence of
democracy which will stray from

democracys own foundational

commitments to dignity. TO DO
TERRIBLE THINGS FOR A
RIGHTEOUS CAUSE.
Gearty concerned; Ignatieff
suggesting that it's okay to
invade a country b/c the country
has a tyrant at it's head; we can
torture an individual b/c that
individual will be useful to us.
Says you can't call it
humanitarian intervention if
you're engaging in the same sort
of evil; it's hypocritical.
Ignatieff; you have to engage in
acts of lesser evil to stamp out
greater evil.
GEARTY from London School of
Economics; attacks the
righteousness of the cause that
justifies these evils.
ON IGNATIEFF;

Michael Ignatieff has been useful to the

US government as it has tried to promote

democracy in the middle east. He brings
to this unofficial job a special, doubleedged approach: he provides
conservative arguments to the liberal
audience and liberal alibis to the
conservatives: Mariano Aguirre,
Exporting Democracy, Revising Torture,
http://www.opendemocracy.net/democracyamericanpower/
jefferson_2679.jsp (JUSTIFIES THE USE OF
FORCE; JUSTIFIES IT IN INVADING
COUNTRIES; provides an alibi + therefore an
alibi for humanitarian imperialism.)

Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being
"sold" to justify the use of force. You want to sell it to the public; by justifying what's happened;
say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was
marketed v. effectively.
Simly another form of "liberalism" which has been used for example by President JFK for
interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America,
prop up those who are.)
Bricmont; everything to do with the IMAGE of human rights.
HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a
weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a
country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level.
Doctors sans frontires; trying to combine the adventurism of communism w. that of
humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary
to a doctor's interests. Supported Kosovo + Libya intervention.
Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become
humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a
"morally better war".

Foley: bodies that were

established to alleviate human

suffering could, on occasion, be
given the task of making the case
for war. (e.g Amnesty
International; find a reason that
there's a breach. Perhaps they
think war is necessary in order to
create a better world? Perhaps
they think war is necessary in
order to create a better world.)
SAVE DARFUR;
- How should justice in the international community happen here?
Punish rogue states in the idea of a human ideal.

Mahmood Mamdani, Saviours and

Survivors (2009): the Save Darfur
lobby demands, above all else,
justice, the right of the international
communityreally the big powers in
the Security Councilto punish
failed or rogue states, even if it be
at the cost of more bloodshed and a
diminished possibility of
reconciliation. In its present form,
the call for justice is really a
slogan that masks a big-power
agenda to recolonize Africa. --

(whites can democratise; turn it

into a clone of you. this is a clear
possibility.)
(uses humanitarianism to further
border goals; topple the dictator,
secure assets. simply a
smokescreen that lets you do
something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS
PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE.
CHILDREN'S RIGHTS
General acceptd principles for kids -NOT TO BE INVOLVED IN WAR + CONFLICT.
TO HAVE DECENT HOUSING, HABITATION + SANITATION.
TO HAVE DECENT EDUCATION.
TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN.
TO BE ADEQUATELY FED.
Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/
rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or
torture; juveniles shouldn't be tortured or held of extended periods of time/detention.

Convention on the Rights of the

Child (1989) -- also part of an
interlocking laws + rights
International Covenant on Civil and
Political Rights (ICCPR);
International Convention on the
Elimination of All Forms of Racial
Discrimination (ICERD);
Convention Against Torture and

Cruel, Inhuman and Degrading

Treatment or Punishment (CAT),
Convention on the Elimination of
All Forms of Discrimination against
Women (CEDAW)
MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE
CHILD. (1989).
- one of the most signatures of all time.
- Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the
treaty. also has a follow up monitoring mechanism that requires nations to make reports on their
progress.
-- some progress HAS been made to obtain it's goals.
Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development
+ respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration.
as a PRIMARY consideration.
- right of all children to express their views. BUT at what point is a child sufficiently aware to consent
to procedure? (sexual consent, for example, is at 13.)
- right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v.
Ferguson instance.)
rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int
arms of customary international law. BUT not interns of international agreements guarding their
welfare. (i.e; there are agreements, expectations on what should be done, but no legal
ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the
Child 1989.
- CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW
ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE
DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER;
E.G, THE UDHR.
CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES.
CRC;
Puts an emphasis on monitoring, tells all it's signatories it has to do this.
e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights
contained in the Crc, the progress that has been made in protecting & promoting these rights & the
obstacles + problems that have been encountered in implementing the CRC.
(i.e the length of how it's being complied to.)
Refugee problem in Australia is an example of where we're not complying; children in these
facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that
is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own
reports.
AUSTRALIAN'S COMPLIANCE;

- Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into
account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT +
PROMOTE CHLDREN'S RIGHTS.
HREOC can make recommendations + note breaches, but they're not enforceable
Power of recommendation + power of shame is, to some degree, sufficient enough. To have an
official law-body in the HREOC would mean that the Cth would be more resistant than it currently is.
Same goes for the way we've signed up for the genocide convention, but we don't have law ratified
here.
YES; there are legitimate expectations of what human rights should occur here, considering that
we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law
Act, for example.

Specific rights of protection at

IHRL
Article 37(c) of the CRC states
that [e]very child deprived of
liberty shall be treated with
humanity and respect for
inherent dignity of the human
person, and in a manner which
takes into account the needs of
persons of his or her age -I.E, DETENTION SHOULDN'T
OCCUR.
Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v.
conspicuous; Sierra Leone + Congo.

CRC says that this is a crime to conscript children. International law prohibits the use of children in
war. Seeks to protect children from hostilities.
What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer
their surfaces in a truly legal way?
When they've served in these armies, argument that there's a "mutual process of brutalisation".
So they're dehumanised, but war's also made them killers.
Should neither be enlisted nor be the victims of war.
THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little
rats". -- stamp out the race.
International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law
to enlist these soldiers + make them fight in a war.
CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence.
Protection against torture (torture convention out laws this too) + any other cruel, inhuman or
degrading treatment or punishment.
Emphasises family reunification; if separated, then they will try to reunify the child.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)

Article 38 of the CRC [1986]

calls on States Parties to apply
the rules of international
humanitarian law that are
relevant to the child, and to take
every feasible measure "to
ensure protection and care of
children who are affected by
armed conflict." - this is for
ALL signatories. even if one of
these signatories is involved
in war; even if it's internal
conflict or no. BUT some of
the most brutal instances of

these violations are internal.

Article 39 of the CRC refers to
the need for physical and
psychological recovery and
social reintegration of child
victims. (try to help the damaged
child back into society. "no," she
said. "i'm too damaged.")
BUT CHILDREN WHO ARE
INFLICTED BY CONFLICT
CAN HAVE AN AMOUNT OF
TRAUMA THAT'S DIFFICULT
TO REINTEGRATE THEM
WITH. ARE THERE THE
MEANS + FACILITIES TO DO
THIS? OBLIGATION MORE SO
RIGHT.

How can we tell what happened to

us? There are no words to describe
what we have witnessed. What we
saw, what we heard, what we did, and
how it changed our lives, is beyond
measure. We were murdered, raped,

amputated, tortured, mutilated, beaten,

enslaved and forced to commit terrible
crimes. - Truth + Reconciliation
Commission Report for the Children of
Sierra Leone in 2004. BOTH TURNED
INTO PERPETRATOR +
RECIPROCANT OF VIOLENCE.
'Children are the greatest fanatics of
all.' - Give em a gun and the
facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)
ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?
Harder with children; both brutalised AND being brutalised.
International community doesn't have a consensus on what age a child is held criminally
responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE When can they be
tried?
CRC defines a child as anyone under 18. Some specific provisions in international conventions;
e.g, don't unlit anyone under 15 to fight in a war.
CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital
punishment or life mprisonment without possibility of release (what would it be like if a child was on
trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?)
STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS;
e.g

[The] exclusion of children from

the ICC jurisdiction avoided an
argument between States on
the minimum age for
international crimes: -- Office

of the Special Representative of

the Secretary-General. We
simply don't really know.
Age of 15 usually the measure as to whether allowance should be made for children in conflict;
whether they can enlist.

If a child under the age of 15 is

considered too young to fight,
then he or she must also be
considered too young to be held
criminally responsible for serious
violations of IHL while
associated with armed forces or
armed group (needs to match
up, otherwise unfair. those
considered children need to be
treated as victims. needs to
match up.)
(crisp, sparse language +
unapologetic, unremitting,
unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful
working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them.
Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR
CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 1998.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT
RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES

FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children.
THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG;
look this up..)
INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international
crimes, directly or not.
children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids
as victims.
other measures to supplement strictly legal ones;
- tribunals, restorative models, commissions, committees to investigate whether human rights have
occurred
Truth and Reconciliation Committees in Sierra Leone that deals with child testimony.
Do their best to uphold the CRC; complies best it can w. the principles of the CRC.
CASE LAW;
(some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions +
wasn't responsible)
e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic
Republic of Congo in Prosecturo v. Lubanga.)

Thomas Lubanga Dyilo found

guilty on charges of conscription
and enlistment of children under
the age of 15 by using them to
participate actively in the ongoing
armed conflict in Ituri. OFFENCE.
Judgment is relevant since
according to the Trial Chamber it
extends to any armed group
within the context of a noninternational armed conflict and
within the ambit of international

humanitarian law.
-- i.e. does not STRICTLY
SPEAKING HAVE TO BE AN
INTERNATIONAL ACT; CAN BE
LOCAL. CAN HAVE SOME
INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT
DOESN'T HAVE TO
BE.DOMESTIC CONFLICT BUT
INTERNATIONAL
HUMANITARIAN LAW STILL
APPLIES.
The Chamber held that the
offences of conscripting and
enlisting are committed at the
moment a child under the age of
15 is enrolled or joins an armed
force or group, with or without
compulsion (Para.
618 Lubanga Judgment). [I.E; if
they'd enlisted themselves, didn't
matter.]

 - Child's ACTION was the critical

thing; not the mental or their
motives. WHAT DOES THE
ADULT DO?

Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is
it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict
situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be
informed or aware.
How do you prosecute those responsible for a crime if the crime's not PERCEIVED as a crime by
other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU
PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering
that not many in Sierra Leone consider it a crime; really, is quite normal?

Is a child in law different from a

child in culture? CULTURAL
CONDITIONS -- might in fact,
CAUSE INTEREST OR IT
JUST /OCCURS/?

Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w.
war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor
v. Norman)

Norman argued that the

Special Court could not try
him for recruiting child
soldiers because it was not a

crime under international law

during the years that the
Prosecutor cited, beginning
with the Special Courts
jurisdiction in 1996. [ LAW
WASN'T VALID YET ???]
Over the years is that an
assumption/expectaton that
enlisting child soldiers is bad;
has been no specific case ON
it, but it's become a norm not
to criminalise. [FIRST OF IT'S
KIND, THE NORMAN CASE.]
Court: had become
international custom and law
even before 1996; e.g the
CRC, Geneva Convention,
African Charter on the Rights
+ Welfare of the Child, e.g.

NORM NEED NOT BE EXPRESSLY STATED IN AN INTERNATIONAL CONVENTION FOR

IT TO CRYSTALLZE AS A CRIME UNDER CUSTOMARY INTERNATIONAL LAW.
Lubanga (2012, Congo); child's mental state didn't matter, nor did it matter if the action wasn't
considered a crime in their country; adult was still to be prosecuted.
Norman: didn't matter if there were no laws on it; anit-child soldier recruitment was already
considered a crime under customary international law.

POWERPOINT TWELVE;
"most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either
participants OR victims of conflict.
-- Revision; humanitarian intervention
Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a
conceit when they say it's rescue/they intend to save other lives.

Sometimes, that argument has

been used to justify the rescue
of a states nationals in another
country for reasons of legitimate
self-defense or an emergency
to save lives, or the principle of
non-derogation of a states right
to protect its own integrity
Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of
the sovereign to protect those nationals + measures of protection confined to objects of
PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE
THE COMMUNITY.
('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik
interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected.
Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated,
we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first
humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo
suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous
precedent.
Commission:

The issue must be reframed not

as an argument about the 'right

to intervene' but about the

'responsibility to
protect.'" (language shifted).
brings out the humanitarian
element more; right to intervene
sounds sovereign; responsibility/
obligation sounds like a need:
NOT an imposition.
Issue was still determining
where humanitarian intervention
fit into the Charter since 2005;
adopted later, although
environmental interests were
redacted.

HUMANITARIAN INTERVENTION;
-> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian
population & minimise damage to states so it can recover.
CRITICS;
Marx -- human rights an illusion.
Bentham -- rights are nonsense upon stilts; require legality.
Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as
one to justify power." (think of this in relation to U.N)
Chomsky: "humanitarism has become an ideology of sorts." (critical of Kosovo.) Post Cold War,
could be used as an excuse to interfere in the affairs of other states. EG intervention to punish
"naughty states".
CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to
whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism."
Left; "Should have occurred".

Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some
on the right who also accept it. Previously on the "left" of the politics; these days, some of the most
conservative.
WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist.
Bush argued that it was a humanitarian mission to remove Saddam Hussein.
Massively damaging though.
HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical.
Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement."
Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be
penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE
PART OF THIS MIX.

Ignatieff: necessity may require

us to take actions in defence of
democracy which will stray from
democracys own foundational
commitments to dignity. TO DO
TERRIBLE THINGS FOR A
RIGHTEOUS CAUSE.
Gearty concerned; Ignatieff
suggesting that it's okay to
invade a country b/c the country
has a tyrant at it's head; we can
torture an individual b/c that
individual will be useful to us.
Says you can't call it
humanitarian intervention if

you're engaging in the same sort

of evil; it's hypocritical.
Ignatieff; you have to engage in
acts of lesser evil to stamp out
greater evil.
GEARTY from London School of
Economics; attacks the
righteousness of the cause that
justifies these evils.
ON IGNATIEFF;
Michael Ignatieff has been useful to the
US government as it has tried to promote
democracy in the middle east. He brings
to this unofficial job a special, doubleedged approach: he provides
conservative arguments to the liberal
audience and liberal alibis to the
conservatives: Mariano Aguirre,
Exporting Democracy, Revising Torture,
http://www.opendemocracy.net/democracyamericanpower/
jefferson_2679.jsp (JUSTIFIES THE USE OF
FORCE; JUSTIFIES IT IN INVADING
COUNTRIES; provides an alibi + therefore an
alibi for humanitarian imperialism.)


Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being
"sold" to justify the use of force. You want to sell it to the public; by justifying what's happened;
say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was
marketed v. effectively.
Simly another form of "liberalism" which has been used for example by President JFK for
interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America,
prop up those who are.)
Bricmont; everything to do with the IMAGE of human rights.
HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a
weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a
country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level.
Doctors sans frontires; trying to combine the adventurism of communism w. that of
humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary
to a doctor's interests. Supported Kosovo + Libya intervention.
Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become
humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a
"morally better war".

Foley: bodies that were

established to alleviate human
suffering could, on occasion, be
given the task of making the case
for war. (e.g Amnesty
International; find a reason that
there's a breach. Perhaps they
think war is necessary in order to
create a better world? Perhaps
they think war is necessary in
order to create a better world.)
SAVE DARFUR;
- How should justice in the international community happen here?
Punish rogue states in the idea of a human ideal.

 Mahmood Mamdani, Saviours and

Survivors (2009): the Save Darfur
lobby demands, above all else,
justice, the right of the international
communityreally the big powers in
the Security Councilto punish
failed or rogue states, even if it be
at the cost of more bloodshed and a
diminished possibility of
reconciliation. In its present form,
the call for justice is really a
slogan that masks a big-power
agenda to recolonize Africa. -(whites can democratise; turn it
into a clone of you. this is a clear
possibility.)
(uses humanitarianism to further
border goals; topple the dictator,
secure assets. simply a
smokescreen that lets you do
something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS
PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE.
CHILDREN'S RIGHTS
General acceptd principles for kids -NOT TO BE INVOLVED IN WAR + CONFLICT.
TO HAVE DECENT HOUSING, HABITATION + SANITATION.
TO HAVE DECENT EDUCATION.
TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN.

TO BE ADEQUATELY FED.
Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/
rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or
torture; juveniles shouldn't be tortured or held of extended periods of time/detention.

Convention on the Rights of the

Child (1989) -- also part of an
interlocking laws + rights
International Covenant on Civil and
Political Rights (ICCPR);
International Convention on the
Elimination of All Forms of Racial
Discrimination (ICERD);
Convention Against Torture and
Cruel, Inhuman and Degrading
Treatment or Punishment (CAT),
Convention on the Elimination of
All Forms of Discrimination against
Women (CEDAW)
MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE
CHILD. (1989).
- one of the most signatures of all time.
- Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the
treaty. also has a follow up monitoring mechanism that requires nations to make reports on their
progress.
-- some progress HAS been made to obtain it's goals.
Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development
+ respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration.
as a PRIMARY consideration.
- right of all children to express their views. BUT at what point is a child sufficiently aware to consent
to procedure? (sexual consent, for example, is at 13.)
- right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v.
Ferguson instance.)

rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int
arms of customary international law. BUT not interns of international agreements guarding their
welfare. (i.e; there are agreements, expectations on what should be done, but no legal
ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the
Child 1989.
- CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW
ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE
DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER;
E.G, THE UDHR.
CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES.
CRC;
Puts an emphasis on monitoring, tells all it's signatories it has to do this.
e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights
contained in the Crc, the progress that has been made in protecting & promoting these rights & the
obstacles + problems that have been encountered in implementing the CRC.
(i.e the length of how it's being complied to.)
Refugee problem in Australia is an example of where we're not complying; children in these
facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that
is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own
reports.
AUSTRALIAN'S COMPLIANCE;
- Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into
account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT +
PROMOTE CHLDREN'S RIGHTS.
HREOC can make recommendations + note breaches, but they're not enforceable
Power of recommendation + power of shame is, to some degree, sufficient enough. To have an
official law-body in the HREOC would mean that the Cth would be more resistant than it currently is.
Same goes for the way we've signed up for the genocide convention, but we don't have law ratified
here.
YES; there are legitimate expectations of what human rights should occur here, considering that
we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law
Act, for example.

Specific rights of protection at

IHRL
Article 37(c) of the CRC states

that [e]very child deprived of

liberty shall be treated with
humanity and respect for
inherent dignity of the human
person, and in a manner which
takes into account the needs of
persons of his or her age -I.E, DETENTION SHOULDN'T
OCCUR.
Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v.
conspicuous; Sierra Leone + Congo.
CRC says that this is a crime to conscript children. International law prohibits the use of children in
war. Seeks to protect children from hostilities.
What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer
their surfaces in a truly legal way?
When they've served in these armies, argument that there's a "mutual process of brutalisation".
So they're dehumanised, but war's also made them killers.
Should neither be enlisted nor be the victims of war.
THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little
rats". -- stamp out the race.
International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law
to enlist these soldiers + make them fight in a war.
CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence.
Protection against torture (torture convention out laws this too) + any other cruel, inhuman or
degrading treatment or punishment.
Emphasises family reunification; if separated, then they will try to reunify the child.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)

Article 38 of the CRC [1986]

calls on States Parties to apply
the rules of international

humanitarian law that are

relevant to the child, and to take
every feasible measure "to
ensure protection and care of
children who are affected by
armed conflict." - this is for
ALL signatories. even if one of
these signatories is involved
in war; even if it's internal
conflict or no. BUT some of
the most brutal instances of
these violations are internal.
Article 39 of the CRC refers to
the need for physical and
psychological recovery and
social reintegration of child
victims. (try to help the damaged
child back into society. "no," she
said. "i'm too damaged.")
BUT CHILDREN WHO ARE
INFLICTED BY CONFLICT
CAN HAVE AN AMOUNT OF

TRAUMA THAT'S DIFFICULT

TO REINTEGRATE THEM
WITH. ARE THERE THE
MEANS + FACILITIES TO DO
THIS? OBLIGATION MORE SO
RIGHT.

How can we tell what happened to

us? There are no words to describe
what we have witnessed. What we
saw, what we heard, what we did, and
how it changed our lives, is beyond
measure. We were murdered, raped,
amputated, tortured, mutilated, beaten,
enslaved and forced to commit terrible
crimes. - Truth + Reconciliation
Commission Report for the Children of
Sierra Leone in 2004. BOTH TURNED
INTO PERPETRATOR +
RECIPROCANT OF VIOLENCE.
'Children are the greatest fanatics of
all.' - Give em a gun and the
facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would
you be?)
ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?
Harder with children; both brutalised AND being brutalised.

International community doesn't have a consensus on what age a child is held criminally
responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE When can they be
tried?
CRC defines a child as anyone under 18. Some specific provisions in international conventions;
e.g, don't unlit anyone under 15 to fight in a war.
CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital
punishment or life mprisonment without possibility of release (what would it be like if a child was on
trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?)
STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS;
e.g

[The] exclusion of children from

the ICC jurisdiction avoided an
argument between States on
the minimum age for
international crimes: -- Office
of the Special Representative of
the Secretary-General. We
simply don't really know.
Age of 15 usually the measure as to whether allowance should be made for children in conflict;
whether they can enlist.

If a child under the age of 15 is

considered too young to fight,
then he or she must also be
considered too young to be held
criminally responsible for serious
violations of IHL while
associated with armed forces or

armed group (needs to match

up, otherwise unfair. those
considered children need to be
treated as victims. needs to
match up.)
(crisp, sparse language +
unapologetic, unremitting,
unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful
working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them.
Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR
CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 1998.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT
RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES
FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children.
THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG;
look this up..)
INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international
crimes, directly or not.
children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids
as victims.
other measures to supplement strictly legal ones;
- tribunals, restorative models, commissions, committees to investigate whether human rights have
occurred
Truth and Reconciliation Committees in Sierra Leone that deals with child testimony.
Do their best to uphold the CRC; complies best it can w. the principles of the CRC.
CASE LAW;
(some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions +
wasn't responsible)
e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic
Republic of Congo in Prosecturo v. Lubanga.)

Thomas Lubanga Dyilo found

guilty on charges of conscription

and enlistment of children under
the age of 15 by using them to
participate actively in the ongoing
armed conflict in Ituri. OFFENCE.
Judgment is relevant since
according to the Trial Chamber it
extends to any armed group
within the context of a noninternational armed conflict and
within the ambit of international
humanitarian law.
-- i.e. does not STRICTLY
SPEAKING HAVE TO BE AN
INTERNATIONAL ACT; CAN BE
LOCAL. CAN HAVE SOME
INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT
DOESN'T HAVE TO
BE.DOMESTIC CONFLICT BUT
INTERNATIONAL
HUMANITARIAN LAW STILL
APPLIES.

 The Chamber held that the

offences of conscripting and
enlisting are committed at the
moment a child under the age of
15 is enrolled or joins an armed
force or group, with or without
compulsion (Para.
618 Lubanga Judgment). [I.E; if
they'd enlisted themselves, didn't
matter.]
- Child's ACTION was the critical
thing; not the mental or their
motives. WHAT DOES THE
ADULT DO?

Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is
it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict
situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be
informed or aware.
How do you prosecute those responsible for a crime if the crime's not PERCEIVED as a crime by
other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU
PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering
that not many in Sierra Leone consider it a crime; really, is quite normal?

Is a child in law different from a

child in culture? CULTURAL

CONDITIONS -- might in fact,

CAUSE INTEREST OR IT
JUST /OCCURS/?

Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w.
war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor
v. Norman)

Norman argued that the

Special Court could not try
him for recruiting child
soldiers because it was not a
crime under international law
during the years that the
Prosecutor cited, beginning
with the Special Courts
jurisdiction in 1996. [ LAW
WASN'T VALID YET ???]
Over the years is that an
assumption/expectaton that
enlisting child soldiers is bad;
has been no specific case ON
it, but it's become a norm not
to criminalise. [FIRST OF IT'S

KIND, THE NORMAN CASE.]

Court: had become
international custom and law
even before 1996; e.g the
CRC, Geneva Convention,
African Charter on the Rights
+ Welfare of the Child, e.g.

NORM NEED NOT BE EXPRESSLY STATED IN AN INTERNATIONAL CONVENTION FOR

IT TO CRYSTALLZE AS A CRIME UNDER CUSTOMARY INTERNATIONAL LAW.
Lubanga (2012, Congo); child's mental state didn't matter, nor did it matter if the action wasn't
considered a crime in their country; adult was still to be prosecuted.
Norman: didn't matter if there were no laws on it; anit-child soldier recruitment was already
considered a crime under customary international law.