Annual Dinner Address

2024 Address

The Hon Mark Dreyfus KC MP

Acknowledgements

It is a pleasure to be invited to give the annual Melbourne Journal of International Law address and to do so this year – in celebration of the journal’s 25th volume, a silver anniversary.

I acknowledge the Wurundjeri Woi Wurrung and Bunurong People of the Kulin Nations on whose lands we are gathered tonight and pay my respects to their Elders, past and present. I extend that respect to all Aboriginal and Torres Strait Islander people here this evening.

As an alumnus of Melbourne Law School, I am particularly pleased to have the opportunity to speak with you this evening. I thank the MJIL student editors – Megan Stevens, Joseph Zivny and Felix Geake-Ransome – for extending the kind invitation.

I would also like to congratulate Professor Michelle Foster on her recent appointment as Dean of the Law School and acknowledge outgoing Dean, Professor Alison Duxbury.

I also acknowledge members of the Law Faculty, members of the journal’s Editorial and Advisory Boards, and, of course, journal contributors past, present and perhaps future here tonight.

Introduction

In 2000, in their preface to the inaugural edition of the Melbourne Journal of International Law, the founding editors set the new journal a challenge:  that its 'continuance would be determined by whether its contents continue to make meaningful contributions to the understanding and development of international law.'

Christopher Weeramantry, then Vice-President of the International Court of Justice, penned the foreword to that first edition. He expressed confidence that MJIL would rise to the challenge. It would provide, in particular, young Australian lawyers a new forum to shape the discipline.

Since that first issue, MJIL has cemented itself as one of the pre-eminent generalist international law journals in the South East Asian region. Importantly, it continues as a student-run organisation providing Australia’s next generation of public international lawyers the opportunity to, as Judge Weeramantry hoped, contribute to the field.

When one looks through MJIL’s 25 volume archive, it is striking how international law is as consistent as it is changing, even in the face of the last quarter century’s evolving challenges.

The first volume published articles which continue to be of great relevance today: underwater cultural heritage, human rights and the ever-increasing interaction between public and private international law.

Now, in its 25th volume, the journal continues to rise to the challenge set by its founders at the turn of the millennium. The new volume spans the ICJ’s Chagos Advisory Opinion, multilateral responses to forced human displacement, self-defence in response to cyber-attacks and deep-sea mining in the South China Sea. All contributions to critical and challenging conversations and ones I look forward to reading.

International Law, Australia and the International Rules-Based Order

Much like the recurring international law themes and questions that MJIL’s 25 volumes have consistently grappled with, international law itself has and continues to play a consistent and important role for Australia.

As Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams proposed in their 2006 book No Country is an Island: Australia and International Law, although at times international law does not seem immediately relevant to domestic Australian politics and law, let alone to our everyday lives, 'no country is an island, set apart from the developing body of international law.'

This evening I want to reflect on the fundamental role international law has played in the development of Australia’s domestic law and in achieving justice and reform here at home, as well as how Australia engages constructively with international legal institutions and processes in support of the international rules-based order.

Mabo and the Implementation of the Convention on the Elimination of all Forms of Racial Discrimination (CERD)

In October 1966 Australia signed the International Convention on the Elimination of all forms of Racial Discrimination. However, it would not be until 1975 when Prime Minister Gough Whitlam and Attorney-General Lionel Murphy enacted the Racial Discrimination Act – Australia’s first substantial human rights legislation – that Australia would ratify the Convention.

In 1982 a High Court challenge to the legislation in Koowarta v Bjelke-Petersen failed. By a narrow majority of four to three, the Court found that the Racial Discrimination Act was within the Commonwealth’s external affairs power, though the precise scope of that power remained far from clear.

A decade after the Racial Discrimination Act passed, in a bid to pre-empt and purportedly extinguish the Meriam peoples’ claim to Native Title over the Murray Islands, Queensland passed the Queensland Coast Islands Declaratory Act 1985.

Nevertheless, in their High Court challenge in Mabo No. 1, the Meriam people successfully argued that the Coast Islands Act was invalid. It was inconsistent with the Commonwealth’s Racial Discrimination Act which the Court had already found to be constitutionally valid.

The path was then clear for the 1992 decision in Mabo No. 2. There, the Court famously rejected the legal doctrine that Australia was terra nullius and held that the common law recognised a form of native title.

Mabo No. 2 is, rightly, considered a leading example of the use of international law to influence the development of the common law in Australia. In his leading judgment, Justice Brennan quoted extensively from the ICJ’s decision:

The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.

Notwithstanding the importance of this and other critical conclusions reached by the High Court in Mabo No. 2, the preceding steps in Koowarta and Mabo No. 1 demonstrated the important role Australia’s international treaty obligations can have on the shape of Australia’s domestic law. Especially the domestic protection of human rights in Australia.

Just as it safeguarded equality before the law for the Meriam people in Mabo No. 1, paving the way for the momentous outcomes that followed, the ratification and implementation of CERD continues to play an important role for advancing the rights of Aboriginal and Torres Strait Islander peoples in Australian law.

Tasmanian Dams Case

Similarly, the High Court’s landmark decision in the 1983 Tasmanian Dams Case further clarified the external affairs power and again demonstrated how international law can be an impetus for domestic law reform.

In the late 1970s the Tasmanian Government proposed the construction of the Franklin Dam on the Gordon River. The dam would have flooded an area in South-West Tasmania which in 1982 – the same year the Tasmanian Parliament passed laws to allow construction to continue – was declared a World Heritage Site by UNESCO.

During the 1983 federal election, Bob Hawke promised to intervene and prevent the construction of the dam. After winning that election, he passed the World Heritage Properties Conservation Act, allowing the Government to stop clearing, excavation and other activities that would damage the heritage site. After the Tasmanian Government refused to halt construction, the Commonwealth commenced proceedings in the High Court.

The central question before the Court was essentially the same as in Koowarta: whether the Commonwealth had constitutional power to make laws to fulfil its obligations under an international convention – here, the World Heritage Convention.

Four to three, the High Court held that the World Heritage Act was indeed supported by the external affairs power. Whilst legal debate over the precise contours of the power would continue for another decade, it was now clear that under section 51(xxix) of the Constitution, the Commonwealth could enact legislation to fulfil Australia's international treaty obligations regardless of whether the treaty reflected a matter of ‘international concern’.

The decision not only halted the construction of the Franklin Dam and protected a world heritage site it provided the critical constitutional precedent for several new laws being enacted to protect Australia’s environmental heritage and biodiversity.

Domestic implementation of Australia’s international treaty obligations continues to account for many Commonwealth’s statutes. As Attorney-General, I have a particular role to play in Australia’s treaty-making process by considering whether we have domestic legislation and other measures in place to enable Australia’s ratification of, and compliance with, our treaty obligations.

Australia’s Involvement in International Cases

As much as international law has had a fundamental impact on Australian domestic law, Australia has often played a leading role in the constructive use of peaceful dispute settlement to shape international law and to uphold the international rules-based order.

Nuclear Test Cases

The Nuclear Tests Cases was Australia’s first encounter with the ICJ.

Throughout the 1960s and 70s, France conducted 46 atmospheric tests at Mururoa and Fangataufa atolls – some 8,700 km from mainland Australia. In his iconic ‘It’s Time’ election speech in 1972, Prime Minister Whitlam pledged: ‘We will take the question of French nuclear tests to the International Court of Justice to get an injunction against further tests’.

And, in May 1973, Australia and New Zealand each instituted proceedings against France. As detailed in a 2021 MJIL Article by Richard Rowe, former Senior Legal Adviser in the Department of Foreign Affairs and Trade, the final decision by Prime Minister Whitlam to institute these proceedings was only taken after sustained Australian diplomatic efforts over a decade had been exhausted.

France, considering the Court lacked jurisdiction, refrained from appearing at the public hearings or filing any pleadings. At the request of Australia and New Zealand, the Court awarded provisional measures requiring France to avoid nuclear tests causing radioactive fallout on Australian or New Zealand territory. This was a significant outcome not only for Australia and New Zealand but also for States in the Pacific who were strongly opposed to the nuclear testing.

At the merits phase, the Court found that the applications no longer had any object, or were ‘moot’. The Court considered that the ultimate objective of Australia and New Zealand had been achieved. France, in various public statements, including by the President, had announced its intention to not carry out any further atmospheric nuclear tests following the 1974 series. In the Court’s view, these statements amounted to binding unilateral obligations assumed by France.

The Nuclear Test Cases are a testament to Australia’s longstanding commitment to the international regime for nuclear non-proliferation. It also revealed Australia to be a courageous State unafraid of using peaceful dispute settlement to uphold the international rules-based order, even against States who are close allies.

Whaling Case

Decades later, in 2010, Australia would again turn to the Court to hold Japan accountable for violations of its obligations under the International Convention for the Regulation of Whaling in connection with its JARPA II whaling program.

I appeared before the Court as Attorney-General alongside a formidable legal team comprised of:

• our Agent, Bill Campbell KC, then General Counsel of the Office of International Law,
• Justin Gleeson KC, then Solicitor-General,
• the late James Crawford SC, at the time the Whewell Professor of International Law at Cambridge,
• Henry Burmester KC, Special Counsel Australian Government Solicitor,
• Philippe Sands KC, and
• Professor Laurence Boisson de Chazournes.

In a resounding victory for Australia, the Court decided by twelve votes to four that the special permits granted by Japan for killing, taking, and treating whales were not ‘for purposes of scientific research’. Thus, all whaling by Japan in the Southern Ocean Sanctuary was subject to the specific substantive regulations and obligations enshrined in the Schedule annexed to the Convention.

The ICJ concluded that Japan had violated a range of these obligations and ordered Japan to revoke any extant authorisation, permit, or licences and refrain from granting any further permits.

Our case before the Court, combined with our sustained efforts through the International Whaling Commission, have contributed to a whaling-free Southern Ocean and a decline in commercial whaling around the world. Since the case, Australia has continued to lead international efforts opposing commercial whaling and advocating for whale conservation.

At the next meeting of the International Whaling Commission in September, Dr Nick Gales – Australia’s Whales Commissioner and key expert witness in the Whaling Case – will be nominated to become the next Chair of the organisation. This is a powerful demonstration of Australia’s commitment to the International Whaling Commission as the global authority for the conservation and management of whales.

The significance of the Court’s decision in the Whaling Case is not limited to the regulation of international whaling. It continues to be a vital precedent in assessing States’ claims that certain measures are justified as part of a scientific programme – an exemption contained in a multitude of other international environmental agreements.

It also continues to be an important case-study in how the Court handled scientific evidence, along with the use and cross-examination of expert witnesses.

And it was of course also the first time Judge Charlesworth was appointed a judge ad hoc by Australia before being elected to the Court in 2021 to fill the late James Crawford’s seat on the bench. Judge Charlesworth was the first Australian woman and only the fourth woman ever elected to the ICJ. I was immensely proud to support Judge Charlesworth’s re-election to the Court in 2023. Judge Charlesworth, another alumna of Melbourne Law School, represents the best of Australia’s commitment to international law and the peaceful settlement of disputes. She has already established herself as a committed, principled, rigorous and fair-minded judge.

Climate Change Advisory Opinions

Australia’s leadership in using international law to achieve important environmental outcomes in our neighbourhood – be it in the Southern Ocean or in the Pacific – is not a new phenomenon, as the Nuclear Tests and Whaling cases illustrate.

Australia continues to engage constructively with current efforts to seek clarity from international courts and tribunals on States’ international legal obligations with respect to climate change.

Climate change is an urgent global challenge, representing the greatest shared threat to all countries. It is also the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific and disproportionately impacts our First Nations people.

Australia was therefore proud to participate in proceedings before the International Tribunal for the Law of the Sea (ITLOS) to clarify the obligations of States to protect and preserve the marine environment from the impacts of climate change. ITLOS delivered its Advisory Opinion in May 2024, which the Government is now considering carefully.

Australia was also a proud co-sponsor alongside 131 others of the Vanuatu-led UN General Assembly resolution requesting an ICJ Advisory Opinion on the obligations of States in respect of climate change. The campaign of course has its origins in the efforts of a group of law students studying at the University of the South Pacific.

Australia filed its first round written statement in March 2024. Australia’s written statements highlight Australia’s resolute commitment to the United Nations Framework Convention on Climate Change and the Paris Agreement as the primary source of States’ obligations under international law concerning the protection of the climate system from anthropogenic emissions of greenhouse gases.

MH17 ICAO Council Proceedings

Finally, I want to turn to two current but distinct proceedings in which Australia is committed to holding the Russian Federation to account and through which we seek to uphold the international rules-based order.

The first is Australia’s efforts to pursue truth, justice and accountability for the downing of Malaysia Airlines Flight MH17 over Ukraine, ten years ago.

This horrific act of violence resulted in the death of all 298 people on board, including 38 who called Australia home. Just last month I travelled to the Netherlands to attend a commemoration marking the ten-year anniversary of this senseless act of violence.

Since 2022, Australia and the Netherlands have been working together to pursue a case against the Russian Federation in the Council of the International Civil Aviation Organization for its role in the downing of Flight MH17.

Our key submission is that the Russian Federation is responsible for the downing of Flight MH17 and has breached Article 3bis of the Chicago Convention, which prohibits the use of weapons against civil aircraft in flight.

In March 2023, the ICAO Council decided that it had jurisdiction to hear our case. In June this year, the ICAO Council held the first hearing on the merits of our dispute.

This is a significant milestone for Australia and the Netherlands in our pursuit of truth, justice and accountability for the victims and their next of kin. It is also a milestone for the ICAO Council itself, being the first time that a dispute brought before the Council has proceeded to a hearing on the merits.

At the first hearing, Australia and the Netherlands presented compelling evidence of Russia’s responsibility for the downing, and responded to questions from Council Members on this issue. That evidence is the product of international cooperation that supported two rigorous investigations – a technical investigation led by the Dutch Safety Board and a criminal investigation conducted by the Joint Investigation Team comprising police, prosecutors and officials from the Netherlands, Malaysia, Belgium, Ukraine and Australia. Despite the Russian Federation’s regrettable withdrawal from the ICAO proceedings, only one day prior to the hearing, the case will continue in accordance with the Council’s Rules.

Australia and the Netherlands will deliver our legal submissions in October and we will continue to work closely with the Netherlands in calling upon the ICAO Council to decide in favour of our claim.

Intervention in Ukraine v Russia ICJ Case

Second, I wanted to conclude with Australia’s involvement in ongoing efforts to ensure Russia is held to account for its continuing illegal and immoral invasion of Ukraine.

Australia strongly supports efforts to hold Russia to account for these actions and has worked with like-minded States to pursue this through a range of legal mechanisms.

In September last year, Australia joined an unprecedented 31 other countries intervening before the ICJ in support of Ukraine’s case against Russia at the preliminary objections phase of the case. The Court has decided it has jurisdiction to hear Ukraine’s case that Russia falsely claimed Ukraine committed genocide in violation of the Genocide Convention.

Australia will continue to intervene in Ukraine’s case against Russia in the ICJ. We have just recently filed an adjusted Declaration of Intervention for the merits phase of the proceeding. Our intervention continues to demonstrate our tireless pursuit of international accountability and our commitment to upholding fundamental rules of international law and the integrity of the Genocide Convention.

Conclusion

No country is an island. Even one girt by sea.

International law has had, and continues to have, a critical role in shaping Australia’s domestic law. Without it, some of the most important milestones in our protection of human rights and the environment would not have been possible.

Australia is not a passive recipient of international law – it has and will continue to engage constructively with international legal institutions and processes. In pursuit of the international rules-based order, our efforts before international court and tribunals shape and develop the law and call for accountability for breaches of it. As I said in my submissions before the Court in Whaling, ‘compliance with international obligations is central to upholding the rule of law’.

Of course, even the most devout of international law audiences – such as this room – can recognise international law’s imperfections. But as James Crawford concluded in his famed Hague Academy Lecture, Chance Order Change:

It has many weaknesses, faces many difficulties, is changing and needs to change further. But in the race for order, it is part of our common heritage, and a vital one.

International law is a vital part of Australia’s heritage, no less its future.

As hoped by its founding editors, I am confident the Melbourne Journal of International Law will continue to play a critical role in this future. Its articles will no doubt shape debates, prompt change and propose solutions to some of our most pressing collective challenges.

Congratulations on reaching the significant milestone of 25 volumes of MJIL. Here’s to the next 25.

2023 Address

Professor Felicity Gerry KC — What is it like to Defend at the International Criminal Court?

I am delighted to speak to you all today at the Melbourne Journal of International Law Annual Cocktail Evening for 2023. Normally I would thank the faculty staff but today I will thank them for their strike to improve pay and conditions.

I would like to thank Editors Jasmine Gan, Eleanor Twomey and Jonathan Ta for their kind invitation to speak on my experiences of what it is like to defend at the International Criminal Court. I was an ideal candidate to ask since I recently returned home to Melbourne from the International Criminal Court ('ICC') where I was on the team defending Mr Al Hassan who is accused of various international crimes arising from the situation in Mali. We have made our closing submissions and we are awaiting verdicts, so I will be a little circumspect in what I say. That said, to recognise that this Journal strives to shape discussion of the most important and relevant legal issues, I have decided to engage in a little theory as well as the odd practice anecdote under three topics:

(i) Being able to defend, especially as a woman;

(ii) The importance of defending in international criminal law ('ICL');

(iii) The challenges defending in the ICC.

First is the time it has taken me to get there.

I first showed an interest in international law when I was at university but, having dropped out of school to teach people to ride horses, I did not have a traditional CV and found it difficult to obtain a spot as a pupil barrister. A colleague of mine did a stage at the European Commission but I couldn’t afford it. I started a general common law domestic practice in 1994 so I will have been at the Bar 30 years next year, 11 of those in Australia. I did not leave international law behind; by 2007 I was hosting an international law seminar at Exeter University under the title 'Iraq, Cambodia and Beyond — Fair Trials in an International Setting'. Most speakers were members of my then chambers in London. Most were men and all had easier paths to working in international criminal law than I did. It took me rather longer to get there. It remains plain harder for a woman, and I had to do a lot to prove my worth — I often say I have watched mediocre men sail into roles I have had to work so hard to even be considered for. I am delighted now to be in silk and to lead. I hope this helps to inspire young lawyers to achieve, whatever the obstacles.

Domestically, I learned to run cases of increasing complexity and size and took silk in 2014. The skills to run a large case are necessary for counsel in the ICC so make the most of your domestic practice as you aspire to be international lawyers. I now combine my practice with academia as a Professor of Legal Practice at Deakin University and an Honorary Professor at Salford University. Scholarship is a vital aspect of legal practice, and many UN roles expect the applicant to have at least a Masters degree. To find my way into international law, I have published book chapters on the evidential and legal issues at the ECCC, the ICTY and the ICC. I published reports on rape in conflict zones. I am editor of ANZSIL Perspective — short articles welcome — we compliment MJIL and are not rivals… I have filed Amicus Curiae briefs on the Radovan Karadžić appeal on issues arising from JCEIII and how the domestic error of law in complicity law has infected those proceedings and now the KSC. An error I identified with my team in the infamous case of Jogee before the UKSC.

I also relatively recently appeared in the ICC to make amicus submissions on the approach to the non-punishment principle for former child soldiers in the Dominic Ongwen appeal — an issue which was picked up by one judge on sentencing principles but no wider debate at the moment… Ongwen of course went on to become a commander but also suffers long term effects of his childhood trauma — the legal tests for victim perpetrators in criminal law remain the most vexing.

So, you could say I have been knocking at the door of the international criminal law for a very long time, finally, with thanks to Melinda Taylor, being given my opportunity to defend Mr Al Hassan in 2022. The message for young lawyers who want to specialise in international law is that sometimes it is a long journey, but it is worth it when you get there. On the practical side, getting to grips with the computer system, the appalling legal aid provision for the defence teams, the lack of equality between the prosecution and the defence, the long hours and the revolving entrance door (in which I was regularly stuck) is a challenge. My mantra was ‘just get me into court’. I know how to examine a witness and to counter a legal objection and, in that sense, much of the process is the same as any other courtroom, albeit with the world watching. The Court is very much its own beast with its own set of surprises. For example, it was somewhat of a surprise to find a French prosecutor when Mali was a former French colony. However, I had the benefit of working with highly skilled professionals on perhaps the most diverse team I have ever had the pleasure to work with. I recommend you read the publicly redacted version of our final closing brief with work from Islamic law experts, submissions on the complexities of the nexus requirements, arguments on the allegations of destruction of cultural property and brilliant contributions on liability. The names of this fabulous team are in the list at the top of the document, without whom we would not have been able to function as counsel. With a special mention of course for the silent heroes investigating defence issues on the ground and the interpreters who gave us unwavering support. Our closing brief is a seminal piece of work of which the whole team should be rightly proud. They all work under extraordinarily difficult conditions with too little recognition of the value of the defence. It has been a privilege.

Next is the importance of defending in international criminal law.

For this speech I dug out the papers from that 2007 seminar where Professor Caroline Fournet said something like this (and I paraphrase): 'There is a paradox in considering international crimes and admissible defences. The ICC has jurisdiction over the most serious of human rights violations including war crimes, crimes against humanity and genocide. It may seem improbable that there could ever be admissible defences to the perpetration of such criminal acts but the fact that international justice provides for defences is to be welcomed, if not celebrated, as a confirmation that justice is not revenge and justice relies on human rights principles of fairness…. [I]t is precisely in instances breaching the principles of fairness — that international criminal trials become a travesty of justice. Fairness and respect for human rights are not synonymous with leniency and impunity.'

For me, the defences are what give the ICC its legality and legitimacy. Enquiring into a situation such as Mali is not an exercise in an assumption of guilt for all those who sought to govern in 2012. It is not an exercise in group liability for human rights violations, but it is an enquiry into the affairs of a traditionally Islamic country through the lens of the trial of a police officer where issues of duress, mistake and superior orders are inevitable and need to be given proper air.

Finally, it is worth understanding the scale of the task we had for Mr Al Hassan.

His case constitutes one of the first 'counter-terrorism' cases at the ICC. Investigating and presenting a case that literally concerned Timbuktu — that euphemism in Western culture for the end of the Earth but for Muslims the heart of Islam where the library still stands, and the people survive. Mr Al Hassan’s case raised issues of duress, mistake and superior orders. Add to this that Mr Al Hassan was tortured and it was the perfect storm of fair trial issues.

In terms of torture, as Alka Pradhan expertly explained in our oral submissions you can watch online, there are multiple credible accounts indicating that Mr Al Hassan was subjected to torture and other forms of cruel, inhuman, and degrading treatment over the course of a year in the lead-up to his transfer to The Hague.¹These accounts detail that while detained by French Barkhane soldiers at a military base outside of Timbuktu, and at the State Security facilities in Bamako, he was tortured including waterboarding and being handcuffed day and night for four months and 20 days, and deprived of adequate food and access to medical care. The ICC prosecution interrogated Mr Al Hassan 19 times over the course of eight months while he was in the State Security detention facility. On the first day of ICC interviews, Mr Al Hassan informed the Prosecution that he had been severely beaten and that he had been threatened during interrogations with the State Security actors at the facility, and at other points during the interviews he complained of symptoms consistent with torture. The Defence challenged the Prosecution’s efforts to introduce the torture-acquired evidence. The Trial Chamber explained that it would not exclude the evidence because in its view the Prosecutors did not collect it 'by means' of torture. The defence has maintained that the issues of torture evidence in this case are critical to the fairness of the present proceedings against Mr Al Hassan, as well as the conduct of future ICC prosecutions. Where there are no legal ramifications from the use of torture and CIDT-derived evidence, the effect is to incentivise torture and to encourage impunity on the part of States, including in relation to future ICC prosecutions.

In relation to defences — as you all well know, duress can mitigate the criminal responsibility of an accused person, mistake of fact and/or law can negate the mental element of a crime particularly where orders are not manifestly unlawful and superior orders can apply to police officers, here the questions related not merely to the group in governance but also to its structures including an Islamic tribunal. All of this was in the important context of Islamic law. As we said in our closing oral submissions: The great power of the International Criminal Court is its ability to make simultaneous enquiry into a situation and the potential criminal liability of an accused person within that situation. It is a power that is intended to have universal reach with a vision of international law that includes the Muslim world. It is a power that must be exercised in context and with understanding of the place and the person. Mr Al Hassan is a Tuareg who was accused as a party to a common purpose to impose Islamic law in such a way that international crimes would follow: superficially the core issue was simple — criminal liability only flows where a person is ‘aware that a circumstance exists, or a consequence will occur in the ordinary course of events.’

In this case knowledge was more complex — did he know the essential facts about the alleged crimes or alleged purpose?  Is his liability excused because he was (or may have been – which allows for reasonable doubt) operating under a mistake in circumstances of necessity and bound to follow superior orders? Would a reasonable person in Mr Al Hassan’s position believe that people were governed and judged according to Islamic law and that Islamic punishments were carried out following a proper order? Would refusal have placed Mr Al Hassan and his family in grave danger? Will the ICC decide that international crimes can be constructed from interpretive Islamic law and governance or was there sufficient evidence to conclude that governance and judicial decision making were lawful and/or appeared lawful to Mr Al Hassan, even if he was mistaken? We await the verdicts.

Conclusion

There is a value in standards of law and evidential process and developing the law on knowledge and affirmative defences to function safely. These are standards of fairness that require diverse teams and contextual understanding. The handling of defences must be achieved with great care. If international criminal justice is to be credible and trusted, then the rights of individual accused must be respected where trials proceed according to legal norms.

So, what is it like to defend at the ICC? For me the answer to this is inextricably linked to the reasoning that will flow from the verdicts whatever they may be — defending in the most testing of cases, as Caroline Fournet once said, is key to ensuring the victory of human rights over human rights violations — in that sense we in the defence teams are the most valuable and currently perhaps the most undervalued in the building… especially when we are stuck in the revolving door.

As you enjoy your cocktails, I hope you can reflect on how important it is to raise a glass to those who defend in the ICC.

Professor Felicity Gerry KC is admitted at the International Criminal Court and the Kosovo Specialist Chambers in The Hague, to the Bar of England & Wales and the Victorian Bar, Australia. She is a Professor of Legal Practice at Deakin University, Melbourne where she is the Unit Chair in the undergraduate and JD programs teaching ‘Contemporary International Legal Challenges’ — including war crimes, modern slavery, terrorism and art law and she is involved in the clinical programs. She is also an Honorary Professor in the School of Health and Society at Salford University, researching the intersection between health, law and education, particularly in human rights law relating to women, children and persons with disabilities.