Earlier this month the Asia Pacific Center for Military Law at the University of Melbourne Law School held an international symposium to commemorate the Center’s 10th Anniversary. The title of the symposium was “Military Justice in the Modern Age.” The symposium featured discussions on the following topics: Military Courts and Civilian Standards; The Power of Command and Military Justice; Constitutional Dimensions and Military Justice in Australia; Military Justice, Civilians and Rights; Comparative Military Justice; Military Justice in Context; and Military Justice on Operations.
I had the opportunity to attend the symposium and I plan to blog on some of the highlights of the conference over the next few days. First, a word about the Asia Pacific Center for Military Justice. The Center draws together academics, members of the military, practitioners and judges to foster a better understanding of military justice. To my knowledge this center is one-of-a-kind and it is a great model that the U.S. and other countries could learn from. The following link provides more information about the Center: http://www.apcml.org/overview.php.
The symposium began with a lecture by Professor Tim McCormack from Melbourne University Law School titled “A Normative Standard for Military Justice.” Tim’s bio is here: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Tim%20McCormack. Tim’s talk focused primarily on what standards the International Criminal Court (ICC) is likely to look to in determining if a state is unwilling or unable to carry out investigations into alleged war crimes committed by its forces.
Tim suggested that the ICC is likely to look at jurisprudence already developed by the European Court of Human Rights. Under the European Court framework an effective investigation has the following components:
1. The investigation must ensure that the state has protected the right to life and that the state is held accountable.
2. The state must have a process for initiating investigations on its own motion, not relying solely on outside pressure to trigger an investigation.
3. Investigations must have structural and practical independence from the individuals or organizations being investigated.
4. Any evidence must be secured and preserved and tested under accepted forensic standards.
5. Investigations must be prompt.
6. There must be public scrutiny and transparency of investigations.
Professor McCormack acknowledges that these standards were developed primarily in the context of investigating conduct by law enforcement agencies. However, he contends that these standards can also apply to military investigations, even during combat. Tim acknowledges that there are significant differences between investigating conduct by law enforcement agencies and investigating military actions. But Professor McCormack contends that the ICC is likely to contextualize these standards to military operations.

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