Michael Ramsden

Joint Criminal Enterprise: Cambodia’s Reply to Tadić

The doctrine of Joint Criminal Enterprise (JCE), which imposes individual criminal responsibility on an accused for their participation in a group’s common criminal plan, rose to prominence in the ICTY Appeal Chamber decision, Prosecutor v. Tadic . Since Tadic, there has been a general reluctance by international ad hoc tribunals to review the legal foundation of JCE. However, on 20 May 2010, the ECCC Pre-Trial Chamber (PTC) considered the applicability of JCE to the atrocities which occurred in Cambodia during 1975-1979 - the period within the tribunal’s temporal jurisdiction. The PTC has, unlike any other ad hoc tribunal to date, subjected the reasoning in Tadic to close scrutiny. This article will analyse the PTC’s decision. In squarely contradicting Tadic on the expanded form of JCE, its findings are to be welcomed. The PTC’s decision should be upheld on appeal in order to uphold the principle of legality; to safeguard the continued respect, credibility and future legacy of the ECCC trial process.

The Politicisation of Hybrid Courts: Observations from the Extraordinary Chambers in the Courts of Cambodia

The use of ‘hybrid’ tribunals as a means to secure accountability for international crimes seeks to combine national ownership over the trials whilst providing a framework for the inclusion of international standards and personnel in the proceedings. The Extraordinary Chambers in the Courts of Cambodia (ECCC) represents one such hybrid experiment. Yet the ECCC has faced recurring allegations of political interference - allegations which are substantial and create, at the least, an appearance of impropriety. The failure of the ECCC and United Nations to adequately address these allegations derived from a hybrid model that did not provide sufficient safeguards against interference. The international community agreed on a solution to secure accountability with awareness that the trials were likely to be politically tainted. As such, the experiment in Cambodia provides a cautionary tale for the future design of hybrid tribunals.

Reflections on a high school mooting competition: bridging the gap between secondary and tertiary education

This article explores ways in which mooting can provide high school students with insight into life as a law student. In gaining high school students’ insights on their early exposure to a legal research skills environment involving oral argumentation exercises, the authors argue that law schools can incorporate experiential learning pedagogies into student recruitment efforts to ensure that both law school and prospective student are better prepared for each other during the delivery and study of law at university level.

Same Sex Marriage in Hong Kong: The Case for a Constitutional Right

Following a landmark ruling of Hong Kongs Court of Final Appeal, there is good reason to believe that a future challenge to legislation restricting marriage to opposite sex couples will be successful. Through the lens of W v. Registrar of Marriages, this article argues that the right to marry in Hong Kong is to be understood as an evolving concept and subject to a living interpretation by the courts. The governments argument that the courts should defer to the legislatures interpretation of the right to marry, in order to ascertain ‘societal consensus’, is challenged. Furthermore, it is argued that the government is unable to furnish good reasons to justify the restriction on the right of same-sex couples to marry. Throughout the article, both Hong Kong case law and relevant comparative jurisprudence inform the discussion.

Fostering Civic Engagement in Legal Education: Observations from Hong Kong

In 2001 the Redmond–Roper Report on Legal Education and Training in Hong Kong outlined major concerns relating to the quality of legal education in Hong Kong, particularly with respect to the overemphasis on black-letter law, teaching methodology that engendered passive learning and a general deficiency in equipping graduates with the legal skills and values necessary to address the needs of the community. Taking the position that fostering civic engagement in curriculum design provides an excellent means to address these concerns, this article examines key initiatives adopted by the Faculty of Law at The Chinese University of Hong Kong. First is an innovative course known as ‘The Individual, the Community and the Law’ which is compulsory for all law students and requires them to undertake a substantial socio-legal research project addressing concerns in the local community. Second is the ‘Refugee Assistance Programme’, a clinic programme that puts students in positions of responsibility to address the unmet legal needs of refugees in Hong Kong. This article will describe the design of these programmes and assess how far these initiatives are able to foster civic engagement and in turn address the concerns of Redmond–Roper.

Uniting Against Impunity: The UN General Assembly as a Catalyst for Action at the ICC".

This article evaluates the role of the UN General Assembly (‘UNGA’) and its subsidiary organs in acting as a catalyst for action at the International Criminal Court (‘ICC’). The power of the UN Security Council (‘UNSC’) to make a referral to the ICC has been increasingly challenged in recent years, due to the perceived misuse of the veto by permanent members and general failings to enforce international criminal law in the face of documented atrocities. Meanwhile, the UNGA and its subsidiary organs have exerted meaningful pressure on the UNSC through the creation of commissions of inquiry and country-specific resolutions. There is the possibility for the UNGA to engage in dialogue with the ICC through ‘quasi-judicial’ resolutions, in coordinating collective responses to a recalcitrant State and individual perpetrators and also through the possible assumption of a referral power. This analysis reveals that the UNGA has become increasingly active in international justice and holds the potential for an enhanced role in addressing the failings of the current UNSC-dominated paradigm governing UN–ICC relations, thereby facilitating States in ‘uniting against impunity’.

Uniting for MH17

Russias veto in the Security Council of a proposed ad hoc tribunal for the Malaysia Airlines Flight MH17 disaster prompts consideration of alternative mechanisms to bring the offenders to justice. It is arguable that the General Assembly, drawing upon the text of the UN Charter and the Uniting for Peace mechanism, possesses the constitutional powers to establish the tribunal. The unique features of the General Assembly, comprising the international community, also means that it is able to act in a way that would facilitate the functioning of an ad hoc tribunal, even in the absence of mandatory powers. Although many practical obstacles lie ahead, an ad hoc tribunal established by a broad coalition in the General Assembly may offer the best hope in securing accountability for the MH17 disaster.

Head of State Immunity and the Rome Statute: A Critique of the PTC’s Malawi and DRC Decisions

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The PTC I held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the ICC. In an apparent retreat, a differently constituted PTC in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 PTC decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

Developments in Hong Kong Legal Education

The history of legal education in Hong Kong is a history of reform. The various inflection points along its story—the establishment of each of the three law schools, the development of the Postgraduate Certificate in Laws (PCLL) and its role in the legal profession, the Redmond–Roper Report and its aftermath—all demonstrate an effort to develop a legal system appropriate to the specific context of Hong Kong. This article traces these developments with a view to providing further insight into ongoing reviews about the structure of legal education in the territory.

Pathways to Social Transformation through Clinic: Developing a “Social Justice” Culture in Hong Kong

Despite its outward appearance as a model of global economic success, Hong Kong is noted for its wide-ranging social problems.1 Law schools inevitably play a critical role in producing socially responsible and public interest-oriented lawyers, who are essential to the delivery of justice and the protection of human rights. In Hong Kong there is a growing need to strengthen civil society and inspire student lawyers to advance the “public interest.”2 While clinical legal education (CLE) and student advocacy have become a core part of curricula around the globe,3 there has been little exploration of how these two modes of experiential education can be combined convincingly to advance social justice. Our aim here, therefore, is to chart the pathways taken toward the goal of developing a “social justice” culture at university level and beyond through CLE.