High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

1280px-High_Court_of_Australia_(6769096715)

Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

You Go ‘Grrl

sue harris rimmer

To celebrate International Women’s Day, IntLawGrrl Sue Harris Rimmer has a terrific post on the Elgar blog about her life journey.  Here’s just a tidbit, but I encourage you to read the entire post:

I finished high school living on my own in a caravan park in a small Australian town at the bottom of the world, living hand to mouth and uncertain about my future. Last year I shared a panel discussion with Angela Merkel in Berlin. I am proud of both these facts.  I can now talk about the economic rights of women from a place of bitter experience and utter conviction, as well as an intellectual base. And I better understand my own position of privilege as a white woman from a developed country, who benefited from a welfare system.

Among her many accomplishments, Sue and her co-editor Kate Ogg are completing the final steps on the Handbook on the Future of Feminist Engagement with International Law, an edited volume forthcoming from Edward Elgar (to which yours truly contributed a chapter).  Keep an eye out for book launches at ANZIL, ASIL, and ESIL in 2018 and 2019!

On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

Announcements

Jobs

  • Two positions are available at Physicians for Human Rights in their Program on Sexual Violence in Conflict Zones.
  • The University of Dayton School of Law is seeking candidates for the position of adjunct professor of law for its collaboration with the University of Dayton Human Rights Center.  As a leader in the global human rights community, the Center searches for transformative solutions to systemic patterns of global injustice.

    This adjunct position affords a unique opportunity for attorneys with an interest and expertise in promoting human rights to teach, train and oversee law students working with the Center to research and analyze the legal aspects of real-world human rights projects.   For example, students may be asked to research the legal issues involved in a peace and reconciliation process or forced labor and produce memoranda outlining their findings and recommendations. The position requires intensive individual instruction and supervision of students and coordination with the Center. If the ideal candidate is not in the Dayton area, that person could work with students using distance learning technology.    If interested, please contact Associate Dean Lori Shaw (lshaw1@udayton.edu).

Events

  • Free Screening in the Global Women, War & Peace Series followed by a panel discussion at Southern Cross University, Gold Coast, 19 August 2016

    Southern Cross University (Australia) is hosting a free public event in the Women, War & Peace series on Friday 19 August 2016. The free screening of ‘Peace Unveiled’ (by PBS) tells a story of three women in Afghanistan who get engaged in peace-talks to ensure that women’s rights did not get traded away in the deal. As with other films in theWomen, War & Peace series, ‘Peace Unveiled’ explores and exposes the changing and powerful roles of women in peace buildingand in conflict. Come along and see and hear about the momentous courage and stories of these inspiring women.

    Please see attached poster with further details, including about the Panellists taking part in the discussion following the film screening. For further details please contact Dr Natalia Szablewska on natalia.szablewska@scu.edu.au .

    5937 Women War and Peace Poster A4 and A5_LO_RES_20160801

Go On! Call for Applications – 2017 Kathleen Fitzpatrick Visiting Fellowships at MLS Laureate Program in International Law

Applications are invited from suitably qualified doctoral and early career scholars to participate in the Laureate Program in International Law at Melbourne Law School during 2017.

The Laureate Program in International Law is funded by the Australian Research Council from 2015 to 2020, and led by Professor Anne Orford. The Program establishes a new interdisciplinary research team, working on a major project entitled Civil War, Intervention, and International Law. That project addresses one of the most pressing questions in contemporary international law and politics: whether, and if so when, it is lawful for external actors to recruit, train, arm, equip, finance, or intervene militarily in support of parties engaged in a civil war. The Program brings together leading scholars in law and the humanities, world-class early career researchers, and innovative practitioners to develop new methods for evaluating the rapidly changing international law on intervention and to enhance the capacity of international law to respond to major social and political transformations.

The Kathleen Fitzpatrick Visiting Fellowships are offered annually, and are designed to enable outstanding female doctoral and early career researchers to visit Melbourne Law School and work with the Laureate Program for up to two months. Funding of up to $3000 is available for Kathleen Fitzpatrick Doctoral and Postdoctoral Fellows towards the costs of travel to, and accommodation in, Melbourne. Further details about the Laureate Program in International Law and the application process for Kathleen Fitzpatrick Fellowships are available at www.lpil.org

 

The closing date for applications is 1 July 2016.

Write On! Call for Papers: The Future of Women’s Engagement with International Law

June 23-24, 2016
Brisbane, Queensland Australia

We are seeking expressions of interest from scholars to attend an international expert meeting at Griffith University in collaboration with the Australian National University Gender Institute and Law School for 23-24 June 2016.

We invite abstracts of 500 words outlining the contribution of an original and critical chapter of up to 8,000 words for publication in the resulting collection by Edward Elgar. The deadline for submission of abstracts is May 2.

For accepted speakers, we will cover accommodation at the Stamford Plaza and all meals whilst in Brisbane, including a reception at the Museum of Contemporary Art. (Brisbane was named the hippest city in Australia by Lonely Planet.) International economy airfares may be provided to ECR scholars upon application.

The aim of The Future of Women’s Engagement with International Law project is to bring a new network of scholars together from a diverse group of countries to produce a prestigious high-quality work of lasting significance. The project will attempt to define the research agenda for women’s engagement with international law over the next 50 years. We hope to follow this initial workshop with further meetings, ideally in Bellagio. We expect five international visitors as well as some leading Australian, New Zealand and Pacific scholars, such as Hilary Charlesworth, Andrew Byrne and Judith Gardam. The workshop is timed to coincide with ANZSIL at ANU.

Edward Elgar has commissioned this new Research Handbook in Women and International Law, to be part of its new International Handbooks on Gender, edited by Professor Sylvia Chant. Edward Elgar is a leading international publisher of scholarly legal titles, specializing in original Research Handbooks. The aim is to produce prestigious high-quality works of lasting significance.

Since a seminal article in 1991 (Hilary Charlesworth, Christine Chinkin, & Shelly Wright, ‘Feminist Approaches to International Law’, 85 American Journal of International Law 613- 645 (No. 4, 1991), scholars and advocates have been exploring the interaction and potential between the rights and well-being of women and the promise of international law.

Research Questions to be explored at the Workshop include the following:

How can international law increase its relevance, beneficence and impact for women in the developed and developing world?

How can international law deal with a much wider range of issues relevant to women’s lives than it currently does?

What are the next frontiers for:

  • gender and international law making
  • gender and international law reform; and
  • gender and the beneficiaries of international law?

The plan is to bring both leading academics and emerging scholars from as many nations and areas of law as possible to tease out themes for the future research agenda. We have identified the following areas for further examination.

  • Where are the Women in International Law?
  • Women and International Law Making and Enforcement
  • Women as the Subjects of International Law
  • Women and International Law Theory
  • Women and Methodologies in International Law (both legal and academic methodologies)
  • Future Horizons

Please send abstracts to s.harris-rimmer@griffith.edu.au and kate.ogg@anu.edu.au by May 2.

 

Susan Harris Rimmer's photo.

Australia’s Increasingly Restrictive Policies Block Asylum Seekers From Entry

Australian Prime Minister, Kevin Rudd, recently announced a strict new policy mandating that all asylum seekers arriving by boat would be sent to a refugee-processing center in Papua New Guinea. This policy change has been covered widely in the media, through the New York Times, the BBC, and other news outlets. According to the Australian Prime Minister’s announcement, asylum seekers, by arriving by boat without a valid visa, will forfeit any right to claim asylum in Australia. Rather, if an asylum seeker is determined to have a genuine claim to refugee status, she will be resettled in Papua New Guinea. Australia is, of course, a signatory to the 1951 United Nations Refugee Convention and the 1967 Protocol. While this development is disheartening, it is not shocking given the political arena and the long history of restrictive asylum policies in Australia. Australia’s policies with regards to asylum seekers arriving by sea have long been controversial. In August 2001, Australia turned away a Norwegian vessel in distress carrying over 400 asylum seekers, focusing international attention on the intersection of maritime rescue law and refugee law. For coverage of this incident and in depth coverage on related issues, see Professor Niels W. Frenzen’s Migrants at Sea blog. Amnesty International’s Australia Chapter also provides regular reports and coverage on the treatment of asylum seekers and refugees in Australia.

Australia is, of course, is only one of several countries to turn away asylum seekers arriving by sea. Indeed, the United States also participates in interdiction at sea. In fact, our own Supreme Court explicitly found this practice to be in line with our international obligations even where, in that case, the US was interdicting Haitians and returning them to the country of feared persecution. See Sale v. Haitian Centers Council, 509 U.S. 155 (1993). Whether Australia’s evolving interdiction policy will be judged by its own courts remains to be seen.