By any measure, Judith Gardam has accomplished much in her professional life and is rightly acknowledged by scholars throughout the world as an expert in her many fields of diverse interest - including international law, energy law and feminist theory. This book celebrates her academic life and work with twelve essays from leading scholars in Gardam's fields of expertise
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In: Introduction to Part IV: Operations Law (2019) Stephens, D. IN "Military Law in Australia'. Edited by Creyke, R, Stephens, D. an Sutherland, P. Federation Press, Asutralia, p.158
Abstract International humanitarian law (ihl) primarily applies to govern the conduct of individuals in the most desperate time of human endeavour, namely armed conflict, in order to ameliorate violence. However, understanding how ihl is disseminated, trained and actually applied in the battlespace is, remarkably, a relatively underexplored area. There are countless volumes dedicated to analyzing and parsing the myriad of words and formulas that comprise this burgeoning body of law. However, there is very little empirical analysis undertaken on effective training strategies and even less on tracking nuanced compliance and decision-making processes in actual armed conflict. Against this background, the 2018 icrc study 'The Roots of Restraint in War' offers an insightful account of how to best frame training strategies and how to optimize compliance in the battlespace. It consciously adopts an inter-disciplinary approach. It accepts fully the role of social, ethical and moral factors that can orientate decision making in a manner that combines with the applicable law. The goal is restraint in war, of a type that comes not from clinical compliance with complex legal formulas and interpretative rectitude but is derived from a deeper sense of professional self-identity. It acknowledges the risks inherent in its approach and yet, compellingly, offers a blueprint for melding principles of ihl with a sense of personal commitment. Such an approach is to be celebrated for the audacity and courage that it exhibits.
In: Increasing Militarization of Space and Normative Responses IN (2017) Recent Developments in Space Law: Opportunities & Challenges, eds. R. Venkata Rao, V.Gopalkrishnan and Kumar Abhijeet, Springer p.91-106
In the contemporary period, many military forces rely heavily on space-based assets to conduct operations across a wide spectrum of contexts. Such reliance necessarily exposes a correlative vulnerability that such assets may be degraded or destroyed, especially in a time of armed conflict. However, the legal framework that governs military action in space during a time of armed conflict is not well explored. This article examines the interaction between International Humanitarian Law (IHL) and the Outer Space legal regime. Harmonization of legal regimes is a goal of any reconciliation project, although such harmonization may not always be readily possible. In such circumstances legal interpretative mechanisms that seek either a vertical hierarchy (jus cogens) or a horizontal priority (lex specialis) may apply, but their utility is often elusive in particular situations. Hence, in those situations identification of relevant state practice can provide a more reliable guide as to treaty context and thus better identify respective objective preferences. Though even here there may not be sufficient state practice, or it might be too diffuse. Thus, when all "normal" legal tools fail to render a satisfactory outcome, this article concludes that a stark policy choice will need to be made between what aspects of which particular treaty regime will apply. It offers a set of principles that might be invoked as a solution. Such an approach is advanced as means of resolving differences by assimilating common value commitments contained within both the IHL and the Outer Space treaty regimes to provide a viable means of harmonization.
In: War Crimes: increasing compliance with international humanitarian law through international criminal law IN (2018) 'International Criminal Law in Context. Ed Philipp Kastner. Routeledge. U.K p109-129
AbstractDaniel Munoz-Rojas and Jean-Jacques Fresard's study "The Roots of Behaviour in War" (RBW Study), which came out in 2004, provided very useful insight into how compliance with international humanitarian law may be better ensured. In essence, it emphasized the role of "the law" and associated enforcement mechanisms in achieving optimal results. Emphasis on "persuasion" regarding the values underpinning the law was identified as having a possibly corrosive effect and was to be de-emphasized, if not avoided. Such conclusions raise serious questions. The study's reliance on neutral normativity of "the law" can be overstated. The issue may be less one of checking aberrant behaviour under the law and more one of ensuring that unnecessary harm is curtailed within the law. The assumptions made by the RBW Study concerning the efficacy of the law are too narrow in their avoidance of the moral and ethical questioning that can accompany legal interpretative approaches. The role of identity and professional culture offers an effective means of ensuring restraint under the law. This article argues that the RBW Study has not stood the test of time and that operational developments have transcended the conclusions made in the study.