LEGAL CI points yearly

ICRC Positives

+ Impartiality and absence of political interference increase likelihood of State Acceptance

Prosecutor v Simić (2006) (ICTY)

+ Promotes and educates on International Law:

Article 9 Geneva conventions: allows for the continued activities of ICRC in conflict zones

Facilitated release of 1,000 detainees after Syrian conflict

+ ICRC emblems are protected items

Misuse is an offence under s 15 Geneva Conventions Act 1957 (Cth)

ICRC Negatives

- Mandate is limited as states ultimately dictate conflict

ICRC 2019: “humanitarian workers can put a bandage on a patient but only the state can cure the patient”

2015 Yemen conflict: over 1,000 workers deployed, yet didn’t end until 2020

- Barrier to aid: relies on state acceptance

Guardian 2016: Red cross aid convoy denied access to Syrian city of Darayya, “dashing all hopes”

ICC Positives

+ Symbolic step forward for ending impunity

Human Rights watch 2018: “whilst you don’t have certainty of a prosecution, you no longer have certainty of impunity”

+ Upholds rule of law

Heads of state are not immune (no one is above the law)

Fair trial and presumption of innnocence (Prosecutor v Lubanga (2009))

+ Rights of victims are upheld

s79 Rome Statute establishes ICC Trust Fund for Victims

Prosecutor V Lubanga 2009: 473 victims got an average of $8,000USD

ICC Negatives

- Limited enforceability: relies on state compliance

Sudanese Omar Al-Bashir is still at large, travelling freely through middle east (warrants from 2009 +2010)

- Jurisdiction is limited: States can leave ICC

Philippines Duterte withdraws after investigation on ‘war on drugs’ (2019)

- UNSC referral to interfere with force is limited

2014 Syria, China and Russia vetoed forceful intervention

Geneva Conventions Positives

+ Have evolved over time to respond to changing nature of conflict

Prisoners of WWI, 1929 listen clear rules for humane treatment, communication, medical care, later included in 1949 GC 3

+ Most signed treaty: 196 ratifciations (upholds rule of law) (known, accessible) ‘jus cogens’

+ Have influenced domestic prosecutions under ‘universal jurisdiction’

2017: Haisam Sakanh sentenced to life by swedish court

+ Australia has shown willingness to prosecute its own alleged war criminals. Oliver schulz on trial for war crimes in afghanistan

Geneva Conventions Negatives

- Widespread non - compliance with GCs

Israel v Hams (2023)

ABC News 2024: “detained palestinians subjected to waterboarding, electric shocks

Al Jazeera (2017): Saudi led air strike targeting school bus in Yemen.

- Assymetric warfare: hard for states to comply with GCs

Vietnam war 1955 -1959 Viet cong PERFIDY, US soldiers used chemical warfare and targeted civilians

MACR Positives

+ Recognises under 10 as ‘conclusive presumption’ incapable of crime:

s5 Children (criminal proceedings act 1987 NSW))

+ Recognise children mature at different rates (10-13) rebuttable

R v Greg (2023)(NSWChC): didn’t understand wrongdoing despite 72 charges

+ Upholds Australia’s requirement under CROC (1989) (Art 40) to set a MACR

MACR Negatives

- Australia’s MACR lags behind Int’l averages

Committee on rights of child recommended 14,

General comment 24: reducing harmful effects by setting appropriate MACR

- Fails to reflect biological realities

AMA: “harmful to health, wellbeing and development + preofrontal cortex is immature

- Exposes young people to harmful cycle of reoffending

AIHW: 65% of 10-13 on community based supervision reoffend within 12 months

Bail CYPs Positives

+ Successful aim to balance right to liberty while presumed innocent against the community

R v JB (2023) NSWSC Bail granted

R v LM (2023) NSWSC Bail not granted - repeated knife crime

+ Specific provisions treat CYPs differently

Bail act 2013 s74 (3)

Children can make multiple bail applications

+ Upholds CROC

s7d Remand = last resort

Bail Negatives

- Remand undermines liberty while presumed innocent

Peter Kropotkin: “prisons are universities of crime”

- Rising amount of CYPs on remand

BOCSAR 2025: 70.7% of CYPs in custody = remand

- Homeless children are getting remand

The conversation: Proffessor Katherine McFarlane: “homelessness and lack of accomodation bail refusals”

YJCs Positives

+ YJCs and other diversionary schemes avoid early contact with serious consequence

warnings, cautions, YJCs

+ High rates of participant + victim satisfaction

BOCSAR 2013: 85% of Victims + Offenders were ‘satisfied’ or ‘very satisfied’

+ Effectively achieves justice:

Australian Jewish News 2015: “Shoah lessons for bus offender” "very moved meeting holocaust survivor”

YJ Negatives

- Does not reduce recidivism in comparison to traditional court

BOCSAR 2012: 64% of YJC and 65% of court reoffend in 24 months

- YJCs are only available for certain offences

s8 Young Offenders Act 1987 (NSW)

• Summary offences

• Must plead guilty

- YJCs alone do not solve the issue, must be paired with others:

Youth on track: targets 10-17 year olds.