Mann, Scott --- "Just Wars and Criminal Laws" [2006] UWSLawRw 3; (2006) 10(1) University of Western Sydney Law Review 45

JUST WARS AND CRIMINAL LAWS

Scott Mann^[∗]

The end of the cold war did not bring the peace that many hoped for. Instead, the post-cold war period has been characterised by continuous warfare around the world. Much of this warfare has included direct involvement or support from the leadership of the English-speaking nations, including the attacks upon Afghanistan and Serbia, the two Gulf War attacks on Iraq and the recent Israeli attack on Lebanon.

Many people believe that these wars are, in important cases, far from just, either in terms of the causes pursued or the conduct involved. Intuition, logic and principle suggest that the supposed justifications offered by the authorities are unconvincing, unachievable or unjust, and that these wars have been - and continue to be -prosecuted in ways which directly involve large scale killings of innocent people, which should be regarded as war crimes, rather than legitimate acts of war. Or they have led to mass killings of innocent people which were reasonably foreseeable consequences of the military actions in question.

The other side of the issue is the failure of others to – promptly enough – institute legitimate defensive military action to protect the victims of illegitimate aggression. There is widespread recognition of such failure in the cases of Rwanda, the former Yugoslavia, East Timor and, more recently, Lebanon. To the extent that the allied attacks on Afghanistan and Iraq lacked moral or legal justification so is there a case to be made that they too should have elicited appropriate action in defence of the victims of such unjustified aggression. There are therefore also issues of the ‘justice’ of identifying foreign nationals participating in military action to defend such victims as ‘terrorists’.

This paper draws upon the work of moral philosophers Richard Norman and Peter Singer, criminologists Rob White and Santina Perrone, and social theorists Heikki Patomaki and Teivo Teivainen to clarify some of the issues involved here. In particular, it focuses upon philosophical, legal and practical issues of just war theory, and of enforcement of law based upon such theory.

Morality

The major wars of recent times – along with genocide in Rwanda and the former Yugoslavia - raise the question of what circumstances (if any) can ever provide moral legitimation for killing in war. In recent years there has been increasing discussion of the tradition of ‘just war’ principles, originally developed by Christian thinkers, and of the role of such principles in the development of international law. As moral philosopher Richard Norman notes, both leaders seeking to give moral legitimacy to wars in which they are involved, and their critics, ‘often employ the same moral vocabulary’ derived from this tradition of thought.^[1]

This vocabulary includes ideas of just cause, right intention, legitimate authority, reasonable hope of success, last resort and proportionality of ends as necessary conditions for a just entry into warfare. Ideas of non-combatant immunity and proportionality of means are considered necessary conditions of just participation in warfare.

As Norman argues, criteria of ‘rightful intention’, ‘reasonable hope of success’, ‘proportionality’ of ends and ‘last resort’ are all closely tied to the issue of ‘just cause’. Rightful intention requires the justice of the cause to be the real objective of the war, rather than a consideration satisfied incidentally. Reasonable hope of success can only mean ‘a reasonable hope of succeeding in a just cause’.^[2] Proportionality can only mean that military action is justified only so long as its harmful consequences don’t outweigh ‘the specific good which the war is intended to achieve’. And ‘last resort’ can only mean that all other, less harmful avenues have been found wanting in achieving the ‘good’ end in question.

As far as ‘just cause’ itself is concerned, as Norman notes, discussion has increasingly focussed upon the idea of ‘defence against aggression’. Killing in war is justified only to defend victims from the aggressive acts of others. ‘This is the version of ‘just war’ theory encapsulated in modern international law, and regularly invoked by politicians’.^[3] At the time of writing, the Israeli leadership is presenting its attacks on Lebanon and the Gaza strip, with large-scale civilian casualties and destruction of essential infrastructure, as defence against aggression by Hizballah and Palestinian militants.

Ideas of self-defence in war, and of legitimate international legal regulation of killing in war, are typically grounded in considerations of individual self-defence, and its regulation by national criminal justice systems. But different theorists have different ideas of how to move from the individual to the social level. Particularly influential in recent years has been Michael Waltzer’s analysis, focused upon the idea of communal acts of killing in defence of territorial integrity and political sovereignty understood by analogy with individual acts of killing in defence of individual life and liberty (including bodily integrity). ^[4]

Self-defence and criminal law

Norman presents a clear moral analysis of issues of individual self-defence. Given the supreme value of human life and a universal individual right to life, an individual right to kill in self-defence exists only in situations of forced choice between lives, where the attacker is responsible for forcing the choice, and – due to the immediacy of the threat - there really is no other way for the person attacked to survive without killing their attacker. This right extends to third parties, intervening to save the lives of others under attack. Indeed, such third parties are probably under a moral obligation to intervene, so long as their own life is not seriously threatened through so doing.

Norman also argues that while ‘someone might be entitled to kill an attacker who threatens to rape her, or kidnap her or enslave her’, it is very doubtful that the justification would extend much further than this’. In particular, given the supreme value of human life, there can be no justification for killing in defence of property.^[5]

People can, of course, be killed through destruction of property- crashing the plane, sinking the boat, destroying the heating in winter or subsistence food supplies during the famine. Destruction or theft of such necessary means of survival can therefore be regarded as an attack upon human life, and loss of life in defence of such means can be justified.

These sorts of ideas are clearly reflected in the sorts of circumstances recognised by the criminal justice system of the common law world as justifying or excusing deliberate acts of homicide. For self-defence and the defence of others is central amongst the ‘true’ or ‘complete’ (as against ‘partial’) defences for such an otherwise criminal act. And this has to be defence of life, rather than merely of property. ^[6]

A key issue here is whether the accused believed – on reasonable grounds – that it was necessary to do what they did in order to save their own life or that of another innocent person from attack. Some authorities have argued also that the attack motivating the defensive action must be unjustified or illegal. If the belief in the necessity of the defence was not reasonable – if less than fatal force was needed for example, then the defence fails. If the accused intended to kill, while knowing that less than fatal force was needed, or having no reasonable belief that it was, they are liable to be judged a murderer. If they were not aiming to kill but did so, the result would be manslaughter. Here, then, we see a clear focus on ‘proportionality’ of force and ‘last resort’.^[7]

The common law countries have generally rejected any legal requirement of duty to rescue others threatened by aggression. But legal theorists have periodically argued a strong case for recognising such a duty^[8], and civil law jurisdictions have provided legal support for the kind of moral duty of rescue considered by Norman.

In some common law jurisdictions, provocation – sufficient to cause the ordinary person to ‘lose self control’ – to the point of intending to kill or injure – can reduce murder to voluntary manslaughter. In others, this partial defence has been abolished. In Victoria, concerns about the use of the defence by men, using issues of jealousy and alleged ‘taunting’ as excuses for killing female partners, has led to changes such that provocation can only be considered as an issue during sentencing. ^[9]

An individual whose mind has been found to have been substantially impaired by abnormality arising from an underlying condition of mental illness (at the time of the crime) can also be guilty of voluntary manslaughter in some jurisdictions. But duress, where a person commits a crime as a result of threats from another, has not been accepted as a defence to a murder allegation, where the accused is the actual killer.^[10] The state of the law in relation to necessity – where the accused chooses – rather than being ordered – to commit a crime as the lesser of two evils is less clear, with conflicting ideas on whether it can be a defence to murder. ^[11]

From individuals to social structures

Waltzer’s analogy focuses upon threats to the life of a political community. Territorial integrity is associated with the ‘life’ of such a community, political sovereignty with its liberty – ‘its right to control its own political life’. Just as a threat to the life or liberty of an individual can justify killing the aggressor, so can a military threat to the life or liberty of the community justify collective military defence involving the death of members of the invading army. And, just as other individuals have a responsibility to intervene to protect the life of another, and the right to kill in order to achieve this, ‘so should a community’s rights to territorial integrity and political sovereignty …be defended by other states’.^[12]

It is easy to see problems with the analogy. Why should actual killing of people be justified in defence of the merely analogical ‘life’ of the victim political system? As Norman points out, a consistent application of the analogy – with a corresponding analogical killing of the polity of the aggressor, makes no sense at all. How can loss of territory, which is essentially loss of property, justify loss of human life in this case?

If we reject this analogy, we are left with collective application of the principles relating to individuals: collective killing justified only by immanent threat to the lives of individual members of the victim community, not to its culture, political institutions or territorial integrity. As Norman says, ‘only something like a defensive war of resistance to genocide could be justified in this way’.^[13]

As Norman argues, to justify killing in defence of a political community per se –a particular set of social institutions, relations and practices, rather than in defence of the lives of the members of such a community – requires us to show that that community (those institutions, relations etc) is ‘so valuable as to justify killing in its defence’. ^[14] We must also remember that lost social institutions and relations can be rebuilt, or lost territory regained, in a way lost human lives cannot, so that even destruction of good institutions may not necessarily be a disaster in the longer term.

Waltzer himself maintains that it is the right of self determination – or rather the existence of institutions that derive from and continue to sustain such a right - that deserves to be defended, and he insists that this does not necessarily imply only liberal democracy. But he is less than clear in identifying what other sorts of regimes actually manifest or sustain such a right, or why contemporary liberal democracy should be thought to do so. Norman says that it would have to be a regime with widespread support and political structures grounded in popular culture.

Both of them agree that non-military intervention is legitimate to attack repressive regimes – not allowing ‘self-determination’. So do they argue that military intervention is another form of coercion, and coercion cannot create freedom. Foreigners can help in the self-organisation of groups struggling to achieve such self determination, presumably including armed resistance to oppression, but they cannot ‘impose’ freedom on others through force of arms. As suggested earlier, such armed intervention is justified only in situations of immanent genocide, the threat of mass enslavement, undisciplined armies running amok, or political repression involving torture and murder.^[15]

Recent developments in Iraq and Afghanistan seem to have provided significant verification of this latter point about the impossibility of coercive imposition of freedom. But the accounts of both of these theorists fail to clearly spell out the nature of the ‘widespread support’ which can supposedly justify killing in defence of particular sorts of politico- economic institutions and practices. Massive central monopoly power over means of mass communication in the modern world contribute to the effective ‘manufacture’ of support for – or at least acceptance of – the policies of government and big business. And evidence of ‘widespread support’ for regimes engaged in brutal repression at home and abroad casts serious doubt upon the moral adequacy of such an idea.

The vagueness of these ideas of ‘self-determination’ and ‘widespread support’ is paralleled by Waltzer’s idea of humanitarian intervention being justified ‘as a response with reasonable expectations of success’ to acts ‘that shock the moral conscience of mankind’.^[16] As Peter Singer points out, ‘conscience has, at various times and places been shocked by such things as inter-racial sex, atheism and mixed bathing’.^[17]

A more promising starting point for moral justification of intervention over and above an immediate threat of loss of life is the earlier consideration of slavery. Just as it may be legitimate – as a last resort – for individuals to kill to avoid enslavement, so might it be legitimate for organised groups of individuals to do the same. If there are reasonable grounds for seeing a forced choice as necessary under the circumstances, with no other recourse possible, to preserve or produce a condition of freedom from slavery – grounded in particular sorts of social and political institutional arrangements – then killing to preserve or achieve such freedom could be morally justified. But, at the same time, it is easy to see the potential for abuse of these ideas, with aggressors claiming their aim is to save the populations of the territories they attack from slavery, when, in fact, they have no such aim or interest.

Major problems also arise in relation to traditional interpretations of morally acceptable conduct within war – jus in bello. The idea of non-combatant immunity- ‘the principle that it is wrong to attack or kill non-combatants - ‘ is usually taken to derive from the supposed ‘innocence’ of civilians as individuals not directly involved in hostilities, as against soldiers, actually engaging in the combat of the war. Civilians are supposedly innocent of direct involvement in warfare, rather than being innocent without qualification. But it seems clear, as Norman points out, that civilians involved in weapons production, for example, are more directly involved in the prosecution of the war than cooks or doctors in the military; that conscript soldiers, forced to fight on threat of court martial execution are relatively non-culpable, while the politicians who direct the war, and big business leaders (who supply the weaponry and reap the benefits of imperial conquest) who direct the politicians are the most culpable, however far away they might appear to be from direct military action. Other civilian supporters of the war can hardly be regarded as innocent, but so are they likely to be victims of misrepresentations fed to them by the politicians and business leaders.^[18]

It has been argued that soldiers have the power to defend themselves in ways that civilian populations do not. And this is certainly true in some cases. But soldiers can be much more vulnerable than civilians in other cases; certainly more vulnerable than leaders hidden in underground bunkers. And it is far from clear how this idea can sustain any clear moral principle on non combatant immunity. Justification of the mass killing of 25,000 conscript soldiers of dictator Saddam Hussein, shot down as they retreated from Kuwait on Iraqi highways in the second Gulf War, provides a very clear example of the inadequacy of the traditional ideas in practice.^[19]

It seems that the combatant /non-combatant distinction is relevant only in relation to earlier considerations of the right of self defence. To the extent that such self-defence is associated with an immediate threat to life and limb, it is more likely that soldiers will be the objects of such legitimate defensive action. But, here again, it is quite possible that self-protection on a large scale can most effectively be achieved through the killing of political and business leaders actually directing the fighters.

From crime to warfare

Given the moral considerations which suggest that the core of just war theory should be the defence of individuals from immanent threat of aggression, it seems reasonable to explore the extension of the basic categories of national criminal law from an individual to a collective and international level. And here, certain issues and problems are immediately apparent.

Both soldiers and other citizens involved in war efforts are frequently subjected to systematic mental manipulation by political authorities aimed at convincing them of the immanent threat to themselves and others – including innocent civilians at home – from foreign armies. This creates problems for the idea of ‘reasonable grounds’ for belief amongst such soldiers and civilians. On the other hand, such manipulation itself indicates the complicity of such authorities in assisting or encouraging the crimes of such soldiers and citizens, where no real issue of self defence exists. And criminal law allows for the prosecution of such accessories before and after the fact as principals in the offence, whether or not the principal offenders themselves have been tried.^[20]

Political authorities themselves can be generally expected to have access to more reliable information about the extent and immanence of such a threat. The issue of such reasonable grounds loomed large in relation to claims made about weapons of mass destruction allegedly developed by the Iraqi leadership in the period immediately preceding the third Gulf War. In seems clear that no such reasonable grounds existed in this case, making the justification of self-defence – or defence of another – inapplicable, and murder charges against the leaders of the coalition of the willing might seem appropriate. Even if there were reasonable grounds for expecting some degree of threat, it seems clear that defensive action could have been taken short of large scale attacks on soldiers and civilians with significant loss of life.

With revelations of the lack of real evidence for immanent mobilisation of weapons of mass destruction, such authorities fell back upon what could be seen as variations on the ‘freedom from slavery’ theme. There are obvious doubts that this was the ‘real’ intention behind the attacks. Nor were there reasonable grounds for believing either that military intervention was necessary as a last resort for achieving significant improvements in the politico-economic situation of the mass of the population or that such improvement would be the likely outcome of the sort of intervention intended.

Duress, provocation and substantial impairment could all be relevant to soldiers, forced into unlawful killing through threat of court martial execution, put through programs of ‘training’ involving ruthless mental manipulation and seeing fellow soldiers killed by soldiers of an opposing army. Even more so, they would seem to be relevant in the case of desperate poor people, driven mad and/or provoked into aggression – including ‘terrorist’ acts – through illegal occupation of their land, destruction of their homes, arrest of their families and deprivation of basic human rights by a foreign power – as in Israel’s Occupied Territories.

On the other hand, it’s difficult to see how provocation or duress could provide any kind of a defence for powerful politicians and business leaders unleashing military attacks upon others. Indeed, the reasons for abolishing provocation as a defence in criminal law are closely paralleled by reasons for disallowing it at a political level – as an excuse born out of regular exercise of power and domination.

Issues of involuntary manslaughter, related in criminal law to causing death through criminal acts carrying appreciable risk of serious injury, without a specific intention to kill, seem clearly relevant to the behaviour of the political and military leaders ordering attacks upon ‘strategic’ sites in civilian population centres. Perhaps, indeed, they have no intention to kill innocent civilians, but their intentional actions can show a massive disregard for the life and safety of such civilians, making a charge of manslaughter by ‘dangerous act’ relevant. ^[21]

‘Criminal negligence’ is less relevant, insofar as this implies a failure to realise the probability of deaths as a consequence of the action in question.^[22] Generally, we should expect such leaders to have a fairly clear idea of the dangerousness of their actions. Indeed, it will be difficult not to see them as intentionally killing civilians when they order intensive bombing of economic infrastructures, identified as ‘military targets’ – such as has been a central feature of all recent wars involving the major capitalist powers. As Norman says, ‘the bombing of such targets inevitably involves large numbers of civilian casualties’, with longer term effects of starvation and disease frequently ‘even more catastrophic’.^[23] This seems to be a clear case of killing people by destroying property – as considered earlier.

The foundations of international criminal law

As noted earlier, just war principles had their origins in the Christian Church’s acceptance of warfare in the Roman Empire. “Force could be used provided it complied with the divine will.’ ^[24] Later, with wars between competing Christian states, the idea became associated with a ‘legal’ requirement for ‘serious attempts at a peaceful resolution… before turning to force.’ ^[25]

The League of Nations failed to prohibit war, but attempted to prevent it with arbitration or restrict its intensity and destructiveness. ^[26] Following the Second World War, however, the United Nations Charter decisively rejected any right of territorial conquest by military force, while supporting the goal of international security in a world ruled by law, with the promotion of equal rights and self determination for all. In particular, Article 2(4) of the Charter committed all member nations to ‘refraining from the threat or use of forces against the territorial integrity or political independence of any state.’ And Article 2(6) requires that the UN ‘shall ensure that states which are not members of the UN act in accordance…with the maintenance of international peace and security.’

The 1970 Declaration on Principles of International Law interpreted Article 2(4) to mean that ‘wars of aggression and acts of reprisal constitute a crime against peace under international law.’ States ‘must not use force to deprive peoples of the right of self-determination….nor organise, institute, assist or participate in acts of civil strife or terrorist acts in another state.’ ^[27]

Use of force is explicitly allowed under the Charter only in case of self defence and Security Council decision. Article 51 of the Charter states that ‘nothing…shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace.’

As Shaw explains, the Caroline case of 1837 has been taken to specify the circumstances of legitimate use of force in self defence in customary international law. There has to exist ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.’ And the action taken must ‘not be unreasonable or excessive…since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.’ ^[28]

It might be thought that international law therefore runs closely parallel to the domestic criminal law of the common law nations, with protection from attack threatening immediate loss of human life seen as the only legitimate defence for intentional killing of other human beings through the use of military force, with reasonable grounds for believing that the level of force involved was necessary to save life under the circumstances.

The problem is the ambiguity of ‘self’ defence as between the protection of human life (from death or enslavement) and Waltzer’s metaphorical or analogical sense of defence of the territorial integrity and political sovereignty of a particular nation state. Whereas human lives can be matched against one another in the former case in considering ideas of ‘proportionality’ and ‘limitation’, the second sort of idea leaves such ‘proportionality’ and ‘limitation’ totally unclear. How many lives can legitimately be sacrificed to ‘save’ particular political structures and institutions? How serious must be the threat to such institutions, or what extent of loss of territory (for example) justifies any use of force to take the lives of the invaders?

On the basis of earlier considerations, the answer seems to be that none of these things can – in themselves - justify any such use of force. The situation here is complicated by the fact that violations of territorial integrity typically also involve some loss of life in the territory in question. Nonetheless, it seems clear that it is ‘protection’ of territorial integrity rather than protection of human life that is the primary concern of international law in this context.

Here we might expect that, as with individual human life in national law, it would only be a threat of immanent and total destruction of the institutions in question that would justify any corresponding loss of human life (on the part of the attackers or defenders) through the use of force against the invaders. But, again, this is not how the ideas in question have been interpreted.

Setting aside considerations of the legitimacy of the pre-existing regime in Kuwait (which was far from democratic), the Iraqi invasion of 1991 could be said to have constituted an immanent threat of destruction of that regime. On this basis, and following Iraqi refusal to withdraw, the UN Security Council support for the Second Gulf War could be said to have been justified by the principle of ‘defence’ of ‘sovereignty’ and ‘territorial integrity’ (even if the principle itself cannot be justified). On the other hand, Shaw also uses the example of the British attack upon the Argentine forces occupying the Falkland Islands in 1982 as a classic example of defence of territorial integrity, fully legitimate in international law. And this is despite the fact that the ‘territory’ in question was minimal and there was no question of any threat to the British regime itself.

It is true, as Norman points out, that ‘the Argentine invasion was an act of aggression against British territory, [and] whatever the strength of the Argentine claim that the territory was wrongly taken from it in the past, British sovereignty in the islands was desired by the islanders and was internationally recognised.’ ^[29] At the same time, the Argentine occupation itself involved minimal force and loss of human life, prior to the British attack a peace plan has been formulated that would have allowed the islanders to retain their culture and independence but the British refused to consider it, and the attack itself led to the loss of 255 British and 652 Argentine lives. ^[30]

Two closely related questions arise in respect of these ideas and events; firstly, the question of the legality of pre-emptive self-defence, prior to actual armed attack, and, secondly, the interpretation of the concepts of ‘necessity’ and ‘proportionality’ once such ideas are cut free of any reference to protection of specific human lives.

As Shaw argues, the general (legal) trend in relation to the first question has been to distinguish situations where a particular regime has good reason to believe that an armed attack is ‘immanent and unavoidable’ (where pre-emption is justified), from those where such an attack is merely ‘foreseeable’ (where it is not justified). This raises questions of the scale of the immanent attack (of stone throwing across a border or use of nuclear weapons e.g.) and the corresponding scale of proportionality of legitimate pre-emptive attack.

The Bush regime in the United States has decisively rejected this interpretation in favour of their own conception of pre-emption, which apparently allows for the first use of force by the United States even when a possible future attack upon the United States is not immanent, and could be avoided through use on non military options. It also allows for the use of force against regimes said to be harbouring terrorists, as well as against those terrorists themselves.

As Shaw states, ‘the concepts of necessity and proportionality are at the heart of self-defence in international law.’^[31] He quotes the International Court in the Nicaragua case as identifying a ‘specific rule’ of customary international law that warrants ‘only measures [of self defence] proportional to the armed attack and necessary to respond to it.’^[32] But the precise interpretation of these terms remains radically uncertain and unclear.

It might be thought that the extent of legitimate response would be determined, not by the extent of the original attack, but by the extent of threatened future attack, and would specifically concern the extent of response needed to obviate such attack. Otherwise, the response looks much more like a reprisal than a defensive act. And reprisals, involving the use of force, are strictly illegal in international law. But there seems to be no such clear-cut interpretation in international law.

Given the radical lack of clarity or principle in this area of law, we must apparently look to international humanitarian law for any hope of principled limitation of loss of life in attacks ‘justified’ as acts of legitimate ‘self-defence’. Particularly significant here are the rules enacted by the Hague Peace Conferences of 1899 and 1907 relating to a range of jus in bello issues, including combatants regarded as lawful, permitted weapons and methods of combat and rules of neutrality.

Important for later developments, and for the issues under consideration here, were Articles 25 and 23(e) of the 1907 Hague Regulations, outlawing direct attacks against non-military targets and prohibiting the use of weapons ‘calculated to cause unnecessary suffering.’ As Amichai Cohen says, there is an implicit idea of ‘proportionality’ involved here, with war declared illegal if the ends (in the form of military goals) cannot justify the means (in the form of human death and suffering).^[33]

The Hague regulations focus on the requirement to ‘protect civilians against the effects of the hostilities.’^[34] Civilian populations and individual civilians ‘shall not be objects of attack’, and ‘constant care’ must be taken to spare and protect them.

Article 51(5) of the 1977 Protocol to the Geneva Convention attempted to clarify issues of proportionality. It prohibited ‘attacks by bombardment’ which treat clearly separated military objectives in areas of civilian population concentration as ‘a single military objective’, and attacks ‘which may be expected to cause incidental loss of civilian life….which would be excessive in relation to concrete and direct military advantage anticipated.’

As Cohen says,

the principle of proportionality, as embodied in this and other similar articles in the first protocol, is based on two complementary ideas… Measures have to be taken to limit the harm that efforts to attain military goals will cause to civilian populations…the military target should be defined in the narrowest possible way…the attacking power should consider whether there is a way to achieve the military objective with less or no damage to the civilian population. ^[35]

The attacking power is also required to ‘make an audit of its proposed operation, comparing the foreseeable damage to the civilian population with the expected military advantage.’ The attacking army is required ‘to relinquish a military advantage if its attainment threatens to cause disproportionate harm to the civilian population.’ ^[36]

The problem is that the nature of the ‘legitimate military advantage’ to be balanced against the loss of innocent life remains unclear, by virtue, in part, of the earlier noted ambiguity in the idea of ‘self defence’.

Article 8 of the Statute of the International Criminal Court of 2002 defines war crimes in such a way as to include

wilful killing, torture, wilfully causing great suffering or serious injury to body or health, or extensive destruction of property not justified by military necessity, forcing prisoners to serve in the armed forces of the other side, depriving prisoners or civilians of a fair trial, unlawful deportation and taking hostages. And 8.2(b) lists 26 other indictable crimes including offences against civilians and civilian targets, various sexual crimes, conscripting children into armed forces and starvation of civilian populations. ^[37]

As far as proportionality is concerned, as Fletcher and Olin point out, the ‘key provision’ is Article 8(2)(b)(iv) of the Rome statute, prohibiting attacks ‘when the collateral harm is excessive relative to the military objective’. ‘Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians ….which would be clearly excessive in relation to the concrete and direct military advantage anticipated’ is a war crime.^[38]

Again, the issue of the nature of ‘legitimate military advantage’ remains unresolved. Recent discussions have focused upon problems of terrorists taking refuge in civilian residences to prevent enemy attack and whether this justifies ‘greater’ civilian casualties than were previously acceptable, and upon the legitimacy of saving more of one’s own soldiers at the expense of greater civilian casualties.

Many such discussions ultimately seem to come down to numbers of individual human lives likely to be lost with and without the intervention in question. Cohen refers to the ‘cumulative effect of proportionality’; where the sum total of civilian casualties ‘caused by the overall campaign’ is ‘a clear boundary-marker’^[39]. Furthermore, Fletcher and Ohlin note that ‘you cannot kill 1000 people in order to save one person from assault.’ Such considerations seem to be directly applicable to Israel’s recent attack upon Lebanon.

At the same time, Fletcher and Ohlin follow the Report of the UN Commission of Inquiry on Darfur in arguing that individuals should be convicted only in cases of ‘extreme disproportion. It is not enough that the costs outweigh the benefits; the harm must be grossly and obviously excessive relative to the military purpose.’ ^[40]

Humanitarian intervention

The United Nations capacity for humanitarian intervention has in the past been taken to be significantly limited by Article 2(7) of the Charter which precludes UN intervention ‘in matters which are essentially within the domestic jurisdiction of any state.’^[41] Most importantly, as has frequently been pointed out, the UN lacks the institutional, financial and technical support needed to properly address these issues. In particular, it lacks any kind of international armed force; its own army or professional police force, capable of enforcing international criminal law. Its failure to act to prevent massive human rights violations in Rwanda and the former Yugoslavia starkly highlighted these limitations.

At the same time, the Charter specifies that 2(7) should not block ‘enforcement measures decreed by the Security Council’.^[42] And as Broinowski and Wilkinson observe, ‘while article 2(7) worked for years to shield even the most repressive governments from outside intervention, over the last three decades, the pendulum has swung slowly the other way and a vigorous debate continues on just where the new balance point should be.’^[43]

In 2002 Ethicist Peter Singer argued that the UN mandate should be understood in the context of international law relating to genocide and crimes against humanity. It should be accepted that ‘the rights of domestic jurisdiction retained by the states in Article 2(7) [do] not extend… to committing genocide or other crimes against humanity’.^[44]

This is in keeping with the report of Kofi Annan’s High Level Panel in 2004, setting out guidelines for justified military action at the behest of ‘a more proactive’ Security Council. The report makes specific reference to just war principles of ‘seriousness of threat’, ‘purpose and proportionality of the response’, the balance of consequences’ and ‘last resort assurance that other means have been exhausted’.^[45]

At the High-level Plenary Meeting of the General Assembly in September 2005 world leaders affirmed a ‘clear and unambiguous acceptance...of the collective responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.^[46] Not only does each individual State have the responsibility to protect its populations from these things, but the international community is ‘prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter…should peaceful means be inadequate and national authorities manifestly fail to protect their populations...’^[47]

In affirming also their ‘strong and unambiguous commitment’ to achieve the Millenium Development Goals – including eradication of poverty and hunger, provision of universal primary education, and combating HIV/AIDS, malaria other diseases of the less developed world by 2015 – so did the heads of state and government correctly recognise the role of poverty, inequality, disease and lack of education in contributing to the crimes in question, and the need to address causes, as well as consequences.

With a recognised right and duty to intervene, both in cases of international aggression and intra-national crimes against humanity, the issue then becomes one of the UN being ‘able to draw on sufficient military force to make intervention effective’. As Singer says, ‘ideally, the United Nations would have sufficient revenue to have its own military forces available for that purpose to defend civilians anywhere in the world threatened with genocide or large scale crimes against humanity.’^[48]

Singer believes that while the spread of democracy, ‘overcoming poverty, eliminating injustice and improving education may make genocide less likely, we cannot rely on these policies alone to prevent it’.^[49] He argues that the human genetic inheritance renders ‘a significant number of human males’ potential perpetrators of genocide, and that in some cases this potential may be ‘acted upon’ without such precipitating factors as ‘poverty, injustice, exploitation or lack of education’.^[50] In light of this consideration ‘we need to be able to do something that will make potential perpetrators of genocide fear the consequences of their actions.’^[51] And this – apparently - means the likelihood of being brought to justice by an international police force and subjected to imprisonment in an international prison system.

Violence and law enforcement

No doubt our genetic inheritance does play some role in explaining violent behaviour. And it is probably true, as Michael Albert argues, that there will still be crimes in a good society, including violent crimes, ‘and investigation and capture of criminals will [still] be serious matters requiring special skills’. ^[52] But this does not mean that we cannot very significantly reduce crimes, and particularly crimes of violence, by addressing issues of poverty, injustice, inequality and oppression. ^[53]

Most significantly, there are good reasons to believe that we cannot and should not try to address issues of law-enforcement and punishment – at the national or the international level - without reference to a deeper understanding of the social causation of crimes of violence.

There is now very substantial evidence from around the world that a significant amount of crime in general, and violent crime in particular, is a product of relative inequality of income and power within particular societies. High levels of inequality within a society create increasing socio-psychological divisions between the relatively wealthy and powerful on one side and the relatively poor and powerless on the other.

The latter can be driven to violence through frustration and resentment, as a response to denigration and devaluation and a means of attaining status or recognition for those with low social status and low self esteem. They can be drawn into violence through subsistence related property and drug crime, or by drug use born of frustration and powerlessness. ^[54]

The former typically exercise their violence at a distance, subjecting the latter to dangerous and unhealthy working conditions, products and environment, to unemployment, homelessness and poverty. On the one hand, such actions are driven by the involvement of the rich and powerful in the dynamics of corporate capitalist competition. As Albert says, ‘capitalism imposes non-stop economic transactional requisites that convey invitations to lie, cheat and otherwise fleece one’s fellow citizens through such means as price gouging, dumping pollutants, paying sub minimum wages’^[55] and economising upon health and safety provisions in the work place. On the other hand, their privilege insulates them from empathy with their victims and from any likelihood of prosecution or serious penalty.

In the USA in particular, the power of big capitalist corporations has been mobilised to prevent any action to reduce accelerating inequality, poverty and exploitation. It has produced ‘poor and poorly educated people on one side, and rich and callous people on the other’. With 30 million people now ‘worrying about falling into or already suffering socially defined poverty’^[56], increasing numbers of the former have been pushed into circumstances where they are encouraged and required ‘to seek means of sustenance outside the law’.^[57] At the same time, the few million people who have so much wealth and power that they virtually own society and determine its course of development are obsessed with ‘protecting themselves ‘ from the former.

High levels of inequality of wealth and power in a society are reflected in, and exacerbated by, institutions and practices of criminal law enforcement. Here, in particular, are major problems of differential policing associated with the very substantial scope of discretion accorded to the police and other law enforcement agencies.

On the one hand, prejudice and stereotyping have sustained massive over-policing of those at the lower end of the hierarchy of wealth and power, including the long-term unemployed, indigenous people and migrants. In Australia, Aboriginal and Torres Straight Islander people are particularly vulnerable, with over policing leading to ‘over representation at all levels of the justice system – initial contact, arrest, conviction and imprisonment.’^[58] The constant surveillance and persecution of Aboriginal communities –- and individuals -- leads to mistrust, hostility and resistance on the part of such victims, which are then used to ‘justify’ intensified persecution. Similarly, police harassment of ethnic minority young people has contributed to mistrust, disrespect and, in some cases, antisocial behaviour and criminal activity by such young people.

On the other side of the coin, as White and Perrone maintain, police have ‘historically failed’ to provide protection for victims of domestic, homophobic and racist violence.^[59] Patriarchal, homophobic and racist attitudes established within police forces have contributed to this failure to protect significant numbers of people at greatest risk. Most important, in terms of the scale of the associated harm, is the failure of the criminal justice system around the developed world to properly address the issues of work-related occupational health and safety violations resulting in serious injuries and deaths as a result of the gross negligence of employers. As White and Perrone point out:

the law is seen to favour those who have the economic and social resources to both define the nature of social harm, and to defend themselves if prosecuted for criminal activity (e.g. by hiring top legal defence teams). From the point of view of a Marxist interpretation, the law is structurally bound to reflect the broad class interests of the capitalist class. It does so ideologically through promulgation of the notion of ‘equality before the law’, and it does so practically through use of technical, procedural and administrative means that subvert the political and social meaning of particular kinds of social harm.^[60]

Closely related to these considerations are issues of abuses of police power and the development of a police culture which obstructs democratic control and accountability. Abuses include the sorts of harassment of poor, indigenous and minority youth groups just considered – including ‘processing’ without customary safeguards, and the use of unwarranted violence and excessive force during arrest and interrogation. The latter are associated with coerced confessions and are supplemented by other fabrication of evidence. Police work provides opportunities for participation in crime, including collection of protection money from law breakers and others, theft of money and drugs, with consumption and sale of the latter, acceptance of bribes, property and sexual favours. And numerous investigations around the world have revealed the presence of such criminal activity. ^[61]

As White and Perrone say, the tight knit character of police society, its isolation and marginalisation from mainstream society, the nature of police interaction with the public in situations of hostility and confrontation, and dissatisfaction with court procedures contribute to a siege mentality and code of silence, shielding police malpractice through systematic obstruction of application of criminal law to the police themselves. Along with ‘inadequate instruction in public ethics’, education by older police and persecution of non-conformists and whistle blowers, these factors contribute to situations of entrenched corruption and abuse.^[62]

So too are there very significant problems associated with the theory and practice of punishment in the common law jurisdictions. We see a theoretical and practical clash of conflicting ideas and practices of deterrence, rehabilitation and reform, incapacitation and community protection, denunciation and moral reprobation, retribution and just deserts, as supposed guiding principles of the system. It is almost certainly impossible to design practices of punishment which simultaneously satisfy hard-liners’ ideas of appropriate retribution while also delivering effective rehabilitation and reform. Nor does the evidence support the idea of draconian practices of retribution serving an effective deterrent or community protection function.

The prison system – particularly in the USA, but also increasingly in other common law jurisdictions – takes the place of a social welfare system, with increasing numbers of – costly, dangerous and dehumanising - prisons absorbing increasing numbers of people because of their ethnic and class position, rather than their criminal activity. These institutions foster hatred, prejudice, anger, crime, disease and drug addiction – rather than reducing them. Imprisonment undermines family ties and future prospects for legal employment. Prison slave labour undermines jobs and conditions in the rest of the community. ^[63]

As inequality and oppression increase, hostility between the forces of law and order and those most oppressed sections of the population likely to seriously challenge the status quo of capitalist class power becomes an increasingly important foundation and protection of such power. At the same time, big businesses benefit from prison construction, cheap prison labour and the pressure such labour puts on other wages.

Problems at the international level

These considerations at the level of the nation state – including the most wealthy and supposedly democratic nation states - must surely give us pause in considering the development of international police and prison systems. This is in addition to earlier raised concerns of the prioritisation of political institutions over human lives in the international law of war, about the failure to develop any clear principles of necessity and proportionality to limit the loss of human life in defence of such institutions, and the USA’s apparent rejection of any principles.

Again, there are good reasons to see radical and increasing inequality within and between nations as a significant social cause of war crimes, genocide, crimes against humanity and other major human rights abuses. On one side poverty, frustration and powerlessness drive desperate people to violent acts. On the other, the requirements of capitalist profit-maximisation motivate powerful corporations to push governments into aggressive imperialist wars to gain access to cheap or necessary raw materials, cheap labour, markets, and investment opportunities. And the scale of such operations increases in proportion to the weakness of the effective opposition.

Without effectively addressing such underlying causes there are also reasons to believe that such structural inequality would radically undermine effective law enforcement at the international level – with international police and prisons - in the same sort of way it appears to have done at the national level. Certainly, the possibilities for abuse of police powers and enslavement of vast prison populations, promoting violent crime on a global scale, are matters of serious concern for would-be reformers of the international criminal justice system.

It is easy to sheet home some of these abuses to the radical inequality and lack of real or meaningful democracy in the highly conservative capitalist societies of the common law world. These are territories in which corporate power has been particularly effective in subverting democratic processes, through its capacity for economic bribery and blackmail, its funding of major political parties and their campaigns, its monopoly power over the mass media and its increasing control of education and research.

In other periods and other regions, corporate power has been more effectively kept in check, at least for limited periods, allowing for increased social welfare, reduced crime, reduced police corruption and reduced prison populations. The Scandinavian countries, in particular, have shown what can be achieved in these areas with state control of natural monopolies, genuinely redistributive taxation and developed social welfare programs reducing crime through reduced inequality. The Dutch and Swedes have also managed to keep prison populations down by decriminalisation of victimless crimes, by directing offenders into community correction programs and imposing lower sentences than other countries. At the same time, they have reduced the oppression and dehumanisation of prison populations by respecting prisoners’ human rights and encouraging genuine rehabilitation.

As noted earlier, there will probably still be some crimes even in highly democratic and egalitarian societies. And there seems no reason to assume that the creation of organisations and jobs involving special skills of criminal investigation, and capture of criminals, need necessarily lead to the sort of corruption and abuse considered earlier. In particular, removal of major pressures and incentives for corruption through reductions in inequality and crime and provision of appropriate training and safeguards can be expected to significantly reduce its likelihood or extent.^[64]

But these considerations only highlight the dominance of regressive corporations, nations, ideas and institutions, and the lack of real and meaningful democracy at the international level, within the United Nations itself and particularly in the composition and operation of the Security Council. Here radical inequalities within nations are complimented by radical inequalities between nations, or between the powers of their politico-economic leaders.

Proposals for reform

As Singer acknowledges, the democratic significance of the one nation one vote principle in the General Assembly is only as strong as the democracy actually prevailing within the nation states in question. So does the nature and extent of democracy within the UN crucially depend on the balance of power between such states influencing the voting in the General Assembly.^[65]

It is clear that radical imbalances of economic and military power between richer and poorer nations have undermined any such international democracy from the start. A majority of poorer countries did organise together to push for UN support for greater international equality in the 1970’s, but the effective takeover of poorer indebted nations by the World Bank and IMF from the 1980’s marked a radical loss of autonomous decision-making power of such countries representatives in the UN. As Patomaki and Teivainen point out, financial blackmail by the US power elite has ensured massive overrepresentation of US and UK citizens in top UN jobs, with an effective shift to a ‘one dollar one vote’ principle in ‘agenda setting power and decision making criteria’.^[66]

Real international law enforcement power resides in the Security Council, rather than the General Assembly, with the US, UK, France, Russia and China as permanent members having a veto power on all decision making. It is this thoroughly undemocratic body that can pass binding resolutions and enforce sanctions against any member states with a veto over all amendments and any review of the UN charter.^[67] Following the end of the Cold War, the collaboration of Russian representatives allowed decisive action by the Security Council in pursuit of the neo-liberal agenda of the dominant economic powers, rather than in the interests of the UN majority, or their citizens.^[68]

The undemocratic dimensions of the Security Council are in conflict with the sovereign equality of all member states set out in Article 2, Paragraph 1 of the UN charter. In particular, as Patomaki and Teivainen emphasise, the veto power and privileged position of the major powers stands in the way of any kind of ‘impartial treatment of violent conflict’ or repression anywhere in the world. This, in turn, undermines the effectiveness of the ICC, depriving it of any power of enforcement not endorsed by the major players, and the US in particular. ^[69]

The position of the ICC is further undermined by lack of jurisdiction over cases supposedly ‘adequately processed’ in national courts – in contrast to earlier ad hoc criminal tribunals in Rwanda and the former Yugoslavia. The US leadership has vigorously resisted any such compulsory jurisdiction over its own citizens – particularly soldiers and politicians. Rejection of Security Council veto over ICC policy led to US withdrawal of support. The US has subsequently pressured other nations to withdraw support for the ICC and/or to enter into binding agreements not to prosecute US citizens, and passed legislation to authorise US military intervention to free US citizens detained by the ICC. ^[70]

Here we must set beside such disproportionate US power within the UN and attacks upon the ICC the rejection of basic principles of international law by the Bush administration as noted earlier, and recent revelations of the United States establishment of secret CIA run prisons around the world for ‘interrogation’ of terror suspects, kidnapped and secretly transported by US agents.

Proposals for democratic reform of the Security Council include expanding its membership and /or reducing the veto power of the richer nations, giving the Assembly, as chief deliberative, policy making and representative body, much greater power over Security Council decision making, and ICJ review of Security Council decision making. Proposals for reform of the General Assembly itself include weighted voting rights in proportion to population (rather than financial contribution as favoured by the US) and direct involvement of ‘authentic’ political NGO’s, rather than business initiated NGO’s, in the work of the General Assembly and its councils and organisations. Another proposal is for a new Peoples Assembly for debate and review, which might or might not have legislative power, to accompany (or replace) the General Assembly, with membership determined by direct global elections. ^[71]

Peter Singer describes such a democratically elected ‘World Assembly’ as ‘an obvious solution’ to problems of lack of democracy within the United Nations.^[72] He suggests that

the United Nations could remain open to all governments, irrespective of their form of government or observance of human rights, but it could replace the present General Assembly with a World Assembly consisting of delegates allocated to its member-states in proportion to their population. The United Nations would then supervise democratic elections in every member country to elect this delegation. A country that refused to allow the United Nations to supervise the election of its delegation would have only one delegate, irrespective of its population. That system would provide experience in democracy for the citizens of most countries, but would retain the inclusiveness that is an important feature of the United Nations.^[73]

And Johan Galtung argues that such an Assembly should make laws, budgets and appointments, as a fully empowered world parliament. ^[74]

There are major ethical and practical problems with all such proposals. As Patomaki and Teivainen remind us, ‘any amendment or review of the UN Charter would require a two thirds support of the members of the General Assembly and the simultaneous backing of the permanent members of the Security Council’.^[75] Any attempt to establish a Peoples Assembly, particularly one with significant legislative power, would face massive opposition from the major world powers. And such powers would be able to exercise economic blackmail and bribery to sway the votes of the leaders of the weaker states.

As noted earlier, the powers of the ICC to enforce its laws are undermined by the lack of effective police powers to support it, and by the threat of US military action against any other nations’ attempts to bring US citizens to justice. ‘On the other hand, enforcement mechanisms controlled by the most powerful actors in world politics can easily have anti-democratic effects if these actors have the option to choose which Court decisions they want to enforce.’^[76] Nor would the Court’s decision-making itself remain immune from such influence.

Conclusion

As suggested earlier, the UN Millennium Development Goals of combating poverty, hunger and environmental damage, promoting equality of women, health and economic development do focus upon some of the underlying causes of war crimes, crimes against humanity and genocide. And renewed commitment of world leaders at the 2005 Summit to achieving such goals by 2015 seems to be a step in the right direction.

However, progress towards these goals has so far been very limited.^[77] It remains to be seen whether things will really improve in the future. And, as Patomaki and Teivainen conclude, ‘without other democratic reforms in world politics, judicial reforms [including the operation of the ICC] will remain limited in their democratic impact’. ^[78] All of the reforms considered so far fail to address the subversion of democracy by corporate power, both nationally and internationally. Without very significant change to the economic infrastructures that underlie such political-legal deliberations, without genuinely democratic accountability of corporate power, such reforms are either unachievable or, if achieved, will fail to have significant impact upon human rights abuses, warfare and the administration of criminal justice. ^[79]

The basic principles of morality and criminal law considered at the beginning of the paper clearly enough show who the real war criminals are. But at the present rate of progress of development and application of international criminal law it looks as if it will take some time for these people to be brought to justice.

---

^[∗] Senior Lecturer in Law, University of Western Sydney. Email: [e-mail].

^[1] Richard Norman, Ethics, Killing and War, Cambridge University Press, 1995, at 117.

^[2] Ibid, 195.

^[3] Ibid, 120.

^[4] Michael Walzer, Just and Unjust Wars, Harmondsworth, 1980.

^[5] Norman, above n 1, 128-129

^[6] Michael Eburn and Robert Hayes, Criminal Law And Procedure in New South Wales, LexisNexis Butterworths, Sydney, 2002, at 354.

^[7] As explained by Mark Marien, in a summary of recent amendments to the NSW Crimes Act, prior to the enactment of the Crimes Amendment (Self-Defence) Act 2001 (NSW) (the Act), the law relating to self-defence in NSW was based on common law along with legislation relating to home invasions and workplace property damage, and centred upon the right to repel an unlawful attack. The case of Vecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645, was taken to have established the legitimacy of defensive action where the defendant believed on reasonable grounds that the resort to force was necessary to protect themselves and where the level of force the defendant believed was necessary was reasonable in the circumstances – as judged by the standards of a hypothetical reasonable person. As Marien notes, ‘the common law...under Zecevic insisted on some objective danger existing before self defence could apply’. The new legislation applicable from February 2002 ‘removed the objective element of the test’ such that ‘a person who honestly thought they were in danger, even if they were wrong about that perception, may be able to rely upon self defence for their actions.’ The person’s actions are still required to be reasonable, but ‘reasonable…in the circumstances as he or she perceives them’ rather than as a hypothetical reasonable person would be expected to perceive them. The Act still excludes self defence where the defendant ‘intentionally or recklessly inflicts death for the purpose of protecting property or preventing a criminal trespass’, and it ‘reduces murder to manslaughter in the case of excessive self-defence…where the defendant uses force that inflicts death which is not a reasonable response in the circumstances, but where [they] believed the conduct was necessary to defend’ themselves or another person ‘or for preventing or terminating unlawful deprivation of liberty.’ Mark Marien, Recently Introduced Amendments to the Crimes Act and other reforms. 16 March 2002, Lawlink NSW, www.lawlink.nsw.gov.au/lawlink/ctrd/11_clrd.nsf/pages/CLRD_recently_intro_a

^[8] See Alan Norrie, Crime, Reason and History, Butterworths, London, 2001.

^[9] Rob White and Santina Perrone, Crime and Social Control, 2^nd Edition, Oxford University Press, Melbourne, 2005, at 121.

^[10] Eburn and Hayes, above n 6, 101-106.

^[11] Ibid, pp. 322-341.

^[12] Norman, above n 1, 133.

^[13] Ibid, 135.

^[14] Ibid, 136.

^[15] Ibid, 135.

^[16] Peter Singer, One World; The Ethics of Globalisation, Text Publishing, Melbourne, 2002, at 135.

^[17] Ibid, 137

^[18] Norman, above n 1, 159-163.

^[19] Ibid, 202. In all, 200,000 Iraqis, civilians and soldiers, were killed in this war.

^[20] Eburn and Hayes, above n 6, 399-416.

^[21] Ibid, 121-126.

^[22] Ibid, 126-127.

^[23] Norman, above n 1, 202.

^[24] Malcolm Shaw, International Law 5th edition, Cambridge, 2003, at 1014

^[25] Ibid.

^[26] Ibid, 1017

^[27] Ibid, 1018

^[28] Ibid, 1024-1025

^[29] Norman, above n 1, 158.

^[30] Ibid.

^[31] Shaw, above n 24, 1031.

^[32] Ibid.

^[33] Amichai Cohen, Proportionality in the Modern Law of War, BESA Centre, Perspectives Paper #20, August 15, 2006.

^[34] Shaw, Above n 24, 1063

^[35] Cohen, above n 33, 2

^[36] Ibid.

^[37] R.Piotrowicz and S.Kayr, Human Rights in International and Australian Law, Butterworths, Sydney, 2000, ch 9.

^[38] George P. Fletcher and Jens David Ohlin, Reclaiming Fundamental Principles of Criminal Law in The Darfur Case, Journal of International Criminal Justice, 2005 3(3):539-561; doi:10.1093/jicj/mqi049, Oxford University Press, 2005, 541..

^[39] Cohen, above n 33, 4-5.

^[40] Fletcher and Ohlin, above n 38, 556.

^[41] Singer above n 16, 143.

^[42] Alison Broinowski and James Wilkinson, The Third Try, Scribe, Carlton North, 2005, pp. 63-64.

^[43] Ibid, 64.

^[44] Singer, above n 16, 147.

^[45] A More Secure World: Our Shared Responsibility, Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, www.un.org/secureworld/

. See also Broinowski and Wilkinson, above n 42, 230.

^[46] United Nations Fact Sheet, 2005 World Summit, High-level Plenary Meeting, 14-16 September 2005.

^[47] R2P Excerpt from Outcome Document of the High Level Plenary Meeting of the General Assembly in September 2005, sections 138-139.

^[48] Singer, above n 16, 159.

^[49] Ibid, 124.

^[50] Ibid.

^[51] Ibid, 125.

^[52] Michael Albert, Realizing Hope; Life Beyond Capitalism, Zed Books, London, 2006, at 28.

^[53] Just because some basic categories of criminal offence and defence in the common law jurisdictions rest upon a solid moral foundation, and have been appropriately extended to the international level, this does not mean that other institutions of the criminal justice system of the common law world – in particular its police and prison based system of criminal law enforcement - have any such solid moral foundation, which would support the creation of similar institutions at the international level.

^[54] See e.g. Richard Wilkinson, The Impact of Inequality, Routledge, London, 2005, chapter 5; Ichiro Kawachi and Bruce Kennedy, The Health of Nations, The New Press, New York, 2006, chapter 6.

^[55] Albert, above n 52, 125.

^[56] Ibid.

^[57] Ibid, 124.

^[58] White and Perrone, above n 9, 42.

^[59] Ibid.

^[60] Ibid, 119.

^[61] See e.g. G.Fitzgerald, Report of the Commission of Possible Illegal Activities and Associated Police Misconduct, Queensland Government Printer, Brisbane, 1989.

^[62] Ibid, 61-68.

^[63] See e.g. Angela Davis, Are Prisons Obsolete?, Seven Stories Press, New York, 2003; David Brown and Meredith Wilkie (Eds), Prisoners As Citizens, Federation Press, Sydney, 2002.

^[64] Albert, above n 52, 28.

^[65] Singer, above n 16, 159-160

^[66] Heikki Patomaki and Teivo Teivainen, A Possible World; Democratic Transformation of Global Institutions, Zed Books, London, 2004, at 19.

^[67] Ibid, 20-21.

^[68] Idid, 18.

^[69] Ibid, 21.

^[70] Ibid, 103.

^[71] Ibid, 20-33.

^[72] Singer, above n 16, 162.

^[73] Ibid, 163.

^[74] Johann Galtung , “Alternative Models for Global Democracy’, in B.Holden (ed), Global Democracy; Key Debates, Routledge, London, 2000, at 156. Quoted by Patomaki and Teivainen, at 32.

^[75] Ibid.

^[76] Ibid, 103.

^[77] See Broinowski and Wilkinson, above n 42, 169-176.

^[78] Ibid.

^[79] There have been past attempts to try to come to grips with this issue of corporate regulation within the United Nations organisation. As Patomaki and Teivainen point out, the Economic and Social Council of the UN – consisting of fifty four members elected for three terms by the General Assembly – was supposed to exercise democratic control of the IMF and World Bank. And in 1974 the ECOSOC established a Commission on Trans-National Corporations to develop a code of practice for TNC’s as a basis for international legal regulation, and to assist third world countries in their dealing with such TNC’s. Ibid, 33. Under pressure from the USA, the IMF and World Bank went in a different direction, as tools of ruthless United States imperial domination, imposing low wages and high pollution on third world countries, and undermining UN democracy as noted above, rather than becoming subject to such democratic control. The Commission’s ‘focus on TNCs’ abuses of power and its restrictive business practices agenda annoyed too many corporations and governments’. Ibid, 35. It was effectively abolished in 1993. And the ECOSOC itself has been neutralised and marginalised by the power of the United States and the big corporations. Ibid, 33. Because of its ‘theoretical’ role as economic regulator, the ECOSOC would seem to be a key area for reform, attempting to establish some kind of international democratic control of big corporations, as a precondition for any kind of meaningful international ‘rule of law’. But any such reform will inevitably be vigorously opposed by the corporations in question and their political representatives.