Steven Freeland

How open should the door be? : declarations by non-states parties under Article 12(3) of the Rome Statute of the International Criminal Court

Article 12(3) of the Rome Statute provides a mechanism for a non-State Party to accept the jurisdiction of the International Criminal Court by lodging a declaration with the Registrar. In doing so, that State agrees to take on obligations of cooperation with the Court that it would otherwise not be under. There have already been declarations lodged by two States and the possibility exists that this mechanism may be utilized more frequently than had been originally envisaged. Yet, the procedures that have followed these two declarations have taken different paths, with one situation being the subject of judicial scrutiny at an early juncture while the other remains at the preliminary evaluation stage without any judicial involvement. These differences are not wholly explained by the different factual circumstances, but are also due to the uncertain language in the legal texts. This article discusses the ambiguities that surround the declaration mechanism under the terms of the Statute and the other legal texts, focusing in particular on the procedural questions that arise from the lodging of a declaration as well as the scope to which the non-State Party can restrict the terms of a declaration. Although it would be preferable to address these ambiguities by way of amendment to the texts, this might not be a politically acceptable approach at this early stage in the Courts activities. This article therefore offers some suggestions as to how to deal with the uncertainties within the Statute as they relate to the declaration mechanism on the basis of the existing provisions.

HUMAN RIGHTS, THE ENVIRONMENT AND CONFLICT: ADDRESSING CRIMES AGAINST THE ENVIRONMENT*

Actions taken during the course of armed conflict have, through the ages, led to significant environmental destruction. Until recently this was regarded as an unfortunate but unavoidable consequence of conflict, despite its sometimes disastrous impact on human populations. However, as the nature and extent of environmental rights have come to be more widely recognized, it is no longer the case that the deliberate destruction of the environment to achieve military and strategic goals can be accepted, particularly given the development of weapons capable of widespread and significant damage. This article argues that the deliberate destruction of the environment during wartime should, in appropriate circumstances, be regarded as a ‘Crime against the Environment’ and should attract international criminal responsibility. It examines the existing international rules that apply to the protection of the environment during armed conflict and explores whether, and to what extent, the International Criminal Court may have competence to deal with acts that significantly damage the environmental rights of targeted populations. [Original article in English.]

Applying the Jus in Bello to Military Uses of Outer Space: A Square Peg in a Round Hole?

The development of satellite technology to enhance the exploration and use of outer space has continued at a rapid rate ever since the space age began in 1957. Satellites play a vital part of many aspects of daily life, and also with respect to the conduct of armed conflict. Most military leaders regard space-related technology as an integral element of their strategic battle platform. This reflects the changing technological nature of armed conflict, which challenges many aspects of international law, including the regulation of warfare. This is particularly the case with respect to the use of satellite technology. Moreover, the continuing development of this technology challenges the core of the ‘peaceful purposes’ doctrine that underpins the international regulation of outer space. This chapter discusses the application of the United Nations Space Treaties and the laws of war to the use of outer space during armed conflict, and offers some reflections as to what is required to properly address the issue.

Peaceful Purposes? Governing the Military Uses of Outer Space

The development of satellite technology to enhance the exploration and use of outer space has continued at a rapid rate ever since the space age began in 1957. Satellites play a vital part of many aspects of daily life, and also with respect to the conduct of armed conflict. Most military leaders regard space-related technology as an integral element of their strategic battle platform. This reflects the changing technological nature of armed conflict, which challenges many aspects of international law, including the regulation of warfare. This is particularly the case with respect to the use of satellite technology. Moreover, the continuing development of this technology challenges the core of the ‘peaceful purposes’ doctrine that underpins the international regulation of outer space. This article discusses the application of the United Nations Space Treaties and the laws of war to the use of outer space during armed conflict and offers some reflections as to what is required to properly address the issue.

Space in a Changing World: The Future Regulation of Outer Space Technology, Warfare and International Law

Our utilization of satellite technology and the unique environment of outer space continues to increase rapidly. Many aspects of our daily lives are closely dependent upon assured access to satellite data. This is also the case with respect to the conduct of armed conflict, with most major militaries regarding space-related technology as an integral element in their strategic battle platform. The changing technological structure of armed conflict, including the use of satellites, poses challenging questions for international law, including the existing laws regulating warfare. This chapter discusses the difficult issues that emerge from these technological developments and offers some thoughts as to how they might be addressed.

Regulation of Space Activities in Australia

The Australian legal system is based on the English common law system. Within this system, the sources of law are (a) statute and delegated legislation; (b) common law, equity and custom; and (c) judge-made and international law.

The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through the Shield of the ‘Peaceful Purposes’ Mantra

Because of its uniquely commanding height, outer space has gained even greater military and strategic value in the post-Cold War international strategic environment. This provides for the possibility - some say probability - that outer space will become a platform for warfare. This development can only have negative consequences in the long term. As the United States pursues a policy that incorporates the placing of weapons in outer space, the other major space faring powers have not been idly sitting by. Recent advances in space technologies have put the development of space weapons within the realm of possibility for several other countries. This article seeks to revisit the intersection of the principal international treaties governing the use and exploration of outer space - primarily the Outer Space Treaty - and the United Nations Charter, in the light of contemporary developments. It outlines recent events in the emerging spaces arms race, which highlight even more the need both to emphasize the centrality of the ‘peaceful purposes’ mantra that underpins the exploration and use of space and to understand its operational rubrics and legal dynamics. It concludes by noting that the future of space security will depend on how effectively all States strive for the ‘de-weaponization’ of outer space by adhering to the peaceful purposes principle.

No longer acceptable : the exclusion of the death penalty under international criminal law

This article examines the position of the death penalty under international criminal law. It traces the evolution in thinking in terms of sentencing practices — from the inclusion (and implementation) of the death penalty in the Nuremberg and Tokyo War Crimes Tribunal statutes, to the modern day international criminal tribunals and courts, which are not mandated to impose the death penalty. This is considered within the broader context of the ‘internationalisation of justice’, which has emerged since the beginning of the 1990s. The article analyses the reasons for this evolution in sentencing, which include changes in human rights standards and societal values, and the developing rationales of international criminal justice, as well as more practical (resource-driven) considerations. The article also considers the implications of the various strategies implemented by a number of the international criminal tribunals to remit cases to national courts in appropriate circumstances, and how this may be contributing to the strong momentum towards abolition of the death penalty at the national level.

Direitos humanos, meio ambiente e conflitos: enfrentando os crimes ambientais

Actions taken during the course of armed conflict have, through the ages, led to significant environmental destruction. Until recently this was regarded as an unfortunate but unavoidable consequence of conflict, despite its sometimes disastrous impact on human populations. However, as the nature and extent of environmental rights have come to be more widely recognized, it is no longer the case that the deliberate destruction of the environment to achieve military and strategic goals can be accepted, particularly given the development of weapons capable of widespread and significant damage. This article argues that the deliberate destruction of the environment during wartime should, in appropriate circumstances, be regarded as a ‘Crime against the Environment’ and should attract international criminal responsibility. It examines the existing international rules that apply to the protection of the environment during armed conflict and explores whether, and to what extent, the International Criminal Court may have competence to deal with acts that significantly damage the environmental rights of targeted populations. [Original article in English.]

Derechos humanos, medio ambiente y conflictos: Enfrentando los crímenes ambientales

Actions taken during the course of armed conflict have, through the ages, led to significant environmental destruction. Until recently this was regarded as an unfortunate but unavoidable consequence of conflict, despite its sometimes disastrous impact on human populations. However, as the nature and extent of environmental rights have come to be more widely recognized, it is no longer the case that the deliberate destruction of the environment to achieve military and strategic goals can be accepted, particularly given the development of weapons capable of widespread and significant damage. This article argues that the deliberate destruction of the environment during wartime should, in appropriate circumstances, be regarded as a ‘Crime against the Environment’ and should attract international criminal responsibility. It examines the existing international rules that apply to the protection of the environment during armed conflict and explores whether, and to what extent, the International Criminal Court may have competence to deal with acts that significantly damage the environmental rights of targeted populations. [Original article in English.]