Accountability for Violations of International Humanitarian Law

Essays in Honour of Tim McCormack

Jadranka Petrovic

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781317669784
• Topic: Law
• Subtopic: International Law
• Index: Law

International criminal adjudication, together with the prosecution and appropriate punishment of offenders at a national level, remains the most effective means of enforcing International Humanitarian Law. This book considers the various issues emanating from present-day breaches of norms of International Humanitarian Law (IHL) and the question of how impunity for such breaches can be tackled.

Honouring the work of Timothy McCormack, Professor of International Law at the University of Melbourne and a world renowned expert on IHL and International Criminal Law, contributors of the book explore the interplay between the rules governing accountability for violations of IHL and other areas of law that impact the prosecution of war crimes, including international criminal law, human rights law, arms control law, constitutional law and national criminal law.

In providing a contemporary consideration of the various issues emerging from present-day breaches of norms of IHL, especially in light of growing interest in 'fragmentation' and 'normative pluralism', this book will be of great use and interest to students and researchers in public international law, international law, and conflict studies.

1
Introduction

Jadranka Petrovic

I. Professor Tim McCormack: biographical note

Professor Tim McCormack was born in Launceston and grew up in Burnie, Tasmania, Australia. He is a graduate of the University of Tasmania (LLB Hons 1982) and of Monash University (PhD 1990). His thesis considered the question of self-defence in international law in the context of Israel’s bombing of the Iraqi nuclear reactor. He was the first Australian recipient of the Golda Meir Postdoctoral Fellowship to the Hebrew University of Jerusalem in 1988. Together with his wife, he spent twelve months in Israel and studied on the Ulpan Program. In 2003, he was awarded a University of Tasmania Foundation ‘Outstanding Graduate’ Award.

A. Australian appointments and awards

Professor McCormack is currently a Professor of Law at the Melbourne Law School and an Adjunct Professor of Law at the University of Tasmania Law School. He is a leading international authority on International Humanitarian Law (IHL) and International Criminal Law (ICL). He is the Law of Armed Conflict Expert Adviser to the Australian Defence Force Director of Military Prosecutions in Canberra and a Director of World Vision Australia. He is also a member of the Advisory Board of the Centre for Jewish History and Culture at the Faculty of Arts, The University of Melbourne; a founding member of the Tim Hawkins Memorial Scholarship Selection Committee at the University of Tasmania; and a member of the Selection Committee for the Golda Meir Postdoctoral Fellowship, Australian Friends of the Hebrew University of Jerusalem.

Professor McCormack was the Foundation Australian Red Cross Professor of International Humanitarian Law (1996–2010) at the Melbourne Law School and also the Foundation Director of the Asia Pacific Centre for Military Law (2001–2010) – a collaborative initiative (established in 2001) between the Melbourne Law School and the Australian Defence Force Legal Service.

From 1991 until 1994, Professor McCormack was a member of the Australian Red Cross Society National Committee on IHL, and from 1999 until 2002 he was a National Vice-President of the Australian Red Cross and chaired the Australian Red Cross National Advisory Committee on IHL (1994–2002). In 2001 he was awarded the Australian Red Cross Medal for outstanding volunteer service to the organisation. In 2014, he was also awarded the Australian Red Cross Distinguished Service Medal for more than 20 years of voluntary commitment to the promotion of the understanding of, and respect for, International Humanitarian Law.

His other past national appointments include a Deputy Chair of the Australian Foreign Minister’s National Consultative Committee on International Security Issues, a founding member of the Foreign Minister’s National Consultative Group on Bio-Security Issues, a member of the Australian Foreign Minister’s National Consultative Committee on Peace and Disarmament, an expert on the Law of War providing advice to Major David McLure and Major Jonathan Hyde for the defence of SGT J and LCPL D before the Australian Military Court Martial in Sydney, and a member of the ‘Safeguarding Australia’ expert sub-committee to advise on the development of the Department of Education, Science and Training’s National Collaborative Research Infrastructure Strategy (NCRIS) for the distribution of $540 million over 5 years for major research infrastructure capabilities.

Professor McCormack has participated in Australian Government delegations to multilateral treaty negotiations in New York, Geneva, The Hague and Rome. He provides expert international legal advice to various Australian Government departments and has delivered conference papers all over the world.

In 2005, Professor McCormack was awarded the President of the Law Institute of Victoria’s Pro Bono Award (in recognition of the provision of IHL and ICL advice to Major Dan Mori, US Military Defence Counsel for David Hicks), which was followed by the University of Melbourne Vice-Chancellor’s Knowledge Transfer Commendation (for the provision of IHL and ICL advice to Major Dan Mori, US Military Defence Counsel for David Hicks). In 2008, Professor McCormack received the Law Institute of Victoria’s Paul Baker Award for his ‘sustained outstanding contribution to international humanitarian and human rights law through publication, teaching and public advocacy’, and in 2010 he was appointed a Fellow of the Australian Academy of Law.

B. International appointments and awards

Professor McCormack has developed an international reputation for his expertise in IHL and in ICL. In 2010, Professor McCormack was appointed the Special Adviser on IHL to the Prosecutor of the International Criminal Court in The Hague.

He is also a founding member of the Council of Advisors to the Global Institute for the Prevention of Aggression and a founding member of the Advisory Board of the International Criminal Court Moot Court Competition at the Grotius Centre for International Legal Studies at Leiden University in The Hague, as well as a member of the international advisory boards of a number of academic institutions in Israel, Germany and Sweden.

In June 2011, Professor McCormack was appointed by the Government of Israel as one of two international observers for Phase 2 of the Turkel Commission of Enquiry into Israel’s processes for investigation of alleged violations of IHL. The Final Report of the Commission, including its recommendations, was presented to Prime Minister Netanyahu in February 2013. From 2003–2007 he was the Expert Consultant on the Law of War to the Defence Team for David Hicks for trial by US Military Commission. In that capacity Professor McCormack travelled to Guántanamo Bay to attend the US Military Commission proceedings against David Hicks in March 2007. From 2002–2006, Professor McCormack acted as amicus curiae on international law matters to the judges of Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague for the trial of Slobodan Milošević.

In 1999, Professor McCormack was awarded the Dutch Foreign Ministry Centenary of the 1899 First Hague Peace Conference Medal for contributions to the conduct of the centenary celebrations at the Peace Palace in The Hague.

Professor McCormack is the general editor (with Christopher Greenwood of the London School of Economics) of the world’s first academic book series dedicated to IHL (with Martinus Nijhoff Publishers in Leiden) and has recently co-edited the thirtieth volume of the series (his seventh book) – Beyond Victor’s Justice: The Tokyo Trial Revisited. From 2005–2010 Professor McCormack was editor-in-chief of the prestigious international journal – the Yearbook on International Humanitarian Law (published by the Asser Press in The Hague).

Professor McCormack has also served on the advisory boards of a number of other prestigious journals. He is a founding member of the Board of Advisors of the journal International Law Studies, US Naval War College, Newport, Rhode Island, and a founding member of the Advisory Board of the Journal of Philosophy of International Law, as well as a member of the editorial advisory board of several other leading international and Australian academic journals, including the International Criminal Law Review, Martinus Nijhoff Publishers, Leiden, the Journal of Conflict and Security Law, Oxford University Press, Oxford, New Zealand Armed Forces Law Review, Armed Forces’ Law Association of New Zealand, Auckland, the Melbourne Journal of International Law, The University of Melbourne and honorary editor of the Jurnal Hukum Humaniter, Centre for International Humanitarian and Human Rights Law, Trisakti University Law School, Jakarta.

C. Teaching and research

Professor McCormack has taught various graduate and undergraduate courses in several Australian law schools (the University of Melbourne, the University of Tasmania, Monash University, Australian National University and Wollongong University) and internationally (the University of Virginia, Auckland and Jerusalem). Recently he has also been awarded a Fullbright Senior Scholarship to take up the position of Charles H Stockton Distinguished Scholar-in-Residence at the US Naval War College in Newport, Rhode Island, and has also been appointed Visiting Professor at Harvard Law School for the Winter Term (January 2016).

Professor McCormack has been involved with the Law School at the University of Melbourne for more than 20 years. During that time he has held a number of positions, including a Director of Studies, Graduate Program in Military Law and an Associate Dean for Research. At the Melbourne Law School, Professor McCormack spearheaded the teaching of IHL in the Masters programme many years ago – Australia’s first graduate coursework specialisation in this field – and his teaching continues to be informed by his active and varied experiences in the field. He also developed an internationally unique specialist coursework graduate programme in Military Law at the Melbourne Law School.

Additionally, Professor McCormack has regularly lectured to graduate recruits in the Department of Foreign Affairs and Trade (DFAT) and to Australian Defence Force (ADF) officers. In particular, he has been heavily involved in the teaching of Military Operations Law (with a significant IHL component) to ADF Legal Officers as well as to legal officers, operators and planning staff from other militaries in the Asia Pacific Region. In these roles Professor McCormack has contributed to the development of a culture of respect for the Rule of Law in the ADF and among regional militaries.

Professor McCormack’s current research interests include investigation and prosecution of international crimes, Australia’s war crimes trials 1945–1951, and new weapons technologies and challenges for International Humanitarian Law. His research has been supported by a number of highly competitive research grants over the years (including Australian Research Council Linkage Grants, an Australia Research Council Discovery Grant and an Australian Defence Science Technology Organisation (DSTO) Grant).

Professor McCormack is the author of numerous books and book chapters and articles, book reviews and other contributions to refereed journals. The list of his voluminous consultancy reports, published conference proceedings and other publications is equally impressive.

Professor Tim McCormack: select bibliography

Books (authored and edited)

Fitzpatrick, G, McCormack, T and Morris, N (eds), Australia’s War Crimes Trials 1945–51 (Martinus Nijhoff Publishers, forthcoming)

Liivoja, R and McCormack, T (eds), Routledge Handbook on the Law of Armed Conflict (Routledge, forthcoming)

Tanaka, Y, McCormack, T and Simpson, G (eds), Beyond Victors’ Justice: The Tokyo Trial Revisited (Martinus Nijhoff Publishers, 2011)

Blumenthal, DA and McCormack, TLH (eds), The Legacy of Nuremberg: Institutionalised Vengeance or Civilising Influence? (Martinus Nijhoff Publishers, 2008)

McCormack, TLH and Saunders, CA (eds), Sir Ninian Stephen: A Tribute (Melbourne University Press, 2007)

McCormack, TLH, Tilbury, M and Triggs, GT (eds), A Century of War and Peace: Asia- Pacific Perspectives on the Centenary of the 1899 Hague Peace Conference (Kluwer Law International, 2001)

Durham, H and McCormack, TLH (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (Kluwer Law International, 1999)

McCormack, TLH and Simpson, GJ (eds), The Law of War Crimes: National and International Approaches (Kluwer Law International, 1997)

McCormack, TLH, Self-Defence in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (Magnes Press with St. Martin’s Press, 1996)

Chapters in books

Dwyer, C and McCormack, T, ‘Characterisation of the Conflict’ in R Liivoja and T McCormack (eds), Handbook on the Law of Armed Conflict (Routledge, forthcoming 2015)

Liivoja, R, Mathews, R and McCormack, T, ‘The Challenges of New Weapons Technologies’ in R Liivoja and T McCormack (eds), Handbook on the Law of Armed Conflict (Routledge, forthcoming 2015)

McCormack, T, ‘Jurisdiction’ in G Fitzpatrick, T McCormack and N Morris (eds), Australia’s War Crimes Trials 1945–51 (Martinus Nijhoff Publishers, forthcoming 2015)

McCormack, T, ‘Who’s Afraid of the International Criminal Court?’ in R Gaita and G Simpson (eds), Who’s Afraid of International Law? (University of Western Australia Press, in press, 2014)

McCormack, T and Morr...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Contributors
• Acknowledgements
• List of abbreviations
• Foreword
• 1 Introduction
• 2 Taming Westphalian sovereignty: international penal process and the expansion of universal jurisdiction
• 3 Liability for ordering the commission of international crimes
• 4 Military members claiming self-defence during armed conflict: often misguided and unhelpful
• 5 Accountability for targeted killing operations: international humanitarian law, international human rights law and the relevance of the principle of proportionality
• 6 Humanitarian access in international humanitarian law: the case of Syria and Security Council Resolution 2139 (2014)
• 7 The Syrian conflict and the use of cultural property for military purposes
• 8 Accountability for violations of the Law of Armed Conflict and the question of the efficacy of International Criminal Law in ameliorating violence in armed conflict
• 9 The fractured relationship between fairness, the rights of the accused, and disclosure at the International Criminal Court
• 10 The Australian experience of conducting war crimes trials
• 11 The ICJ’s role in determining accountability for violations of International Humanitarian Law
• 12 Moving from the mechanics of accountability to a culture of accountability: what more can be done in addition to prosecuting war crimes?
• Bibliography
• Index