Emily Crawford | The University of Sydney (original) (raw)

Papers by Emily Crawford

International Review of the Red Cross

A recent report by the Australian Defence Force arrived at a conclusion that further investigatio... more A recent report by the Australian Defence Force arrived at a conclusion that further investigation was not warranted of commanders regarding their responsibility for failing to investigate suspicious behaviour of subordinates in Afghanistan, who were accused of violations of international humanitarian law. This troubling conclusion calls for a better analysis and understanding of command responsibility in international law and gaps in the law of command responsibility. This article identifies the conflicting precedents and scholarship regarding the law of command responsibility, which create uncertainty, and proposes a clarification of that law, with a special focus on the “reason to know” standard that triggers responsibility for failing to prevent or punish war crimes. It refutes the popular claim that commanders must act wilfully, and it rejects the common dichotomy between a commander who orders or otherwise directly participates in the war crimes of subordinates and one who unw...

Non-Binding Norms in International Humanitarian Law, Dec 23, 2021

This chapter will explore why there has been a turn to non-binding norms in internationa... more This chapter will explore why there has been a turn to non-binding norms in international law more generally, and international humanitarian law (IHL) specifically, to see if common motivations can be found. The statements of purpose behind the adoption of the various manuals, codes of conduct, and other non-binding norms will thus be examined, to ascertain whether any common reasoning underpins the adoption of such instruments and documents. This chapter will do this by looking only to the primary documentation of the instruments themselves—i.e., only the officially released document containing the instrument. The discussion of these documents will be framed by a discussion and analysis of theories of soft law compliance, looking at why other branches of international law—such as economic law and environmental law—have embraced non-binding norms. Does the theory of why soft law norms are created match the practice of creating soft law norms? This theoretical analysis of why soft law norms are adopted, coupled with the practical examination of why particular IHL non-binding norms have been developed, will set the parameters for the discussion and analysis that will take place in the remainder of the book.

Non-Binding Norms in International Humanitarian Law, 2021

Having assessed the non-binding instruments and provisions in international humanitarian law (IHL... more Having assessed the non-binding instruments and provisions in international humanitarian law (IHL), a pertinent, if simplistic question arises: do they actually work? It is clear, from the examination undertaken in the previous chapters, that the drafters of these non-binding provisions and instruments intend for the rules and/or recommendations contained within the instruments to influence State (and non-State) behaviour. This chapter will examine whether these aims are borne out in practice. Admittedly, this is a low bar to meet, but, as this chapter explores, some instruments cannot meet even that minimum standard.

This book examines and analyses the phenomenon of non-binding instruments (also known as... more This book examines and analyses the phenomenon of non-binding instruments (also known as 'soft law') in the law of armed conflict, or international humanitarian law (IHL). In the past 30 years, there have been a number of non-binding instruments created, designed as either 'best practice' guidelines, or (re)statements of applicable law. These instruments are not treaties, but they nevertheless put themselves forward as authoritative statements of what the law is and, in some instances, what the law should be. Soft law instruments can be dynamic, prompt, and responsive measures to address pressing issues in armed conflicts. By drawing on the skill of a small group of experts, these instruments can be debated and drafted in a timelier manner than if these issues were to be left to the international community of 194 States to resolve. Furthermore, because these instruments do not have to be sent for debate to an international conference of States, it means that the provisions are not subject to the usual revisions, reservations, and dilutions that come with attempting to reach consensus. However, there are also potential and actual problems with these instruments and the processes that bring them to fruition, and how they are received in practice by States and other stakeholders. This book looks at the benefits and drawbacks for States and non-State actors with regards to soft law, whether they are effective additions to the law of armed conflict, analysing the development through the lens of theories of legitimacy and legality in international law.

1. Introduction As noted in Chapter 1, international humanitarian law (IHL) or the jus in bello (... more 1. Introduction As noted in Chapter 1, international humanitarian law (IHL) or the jus in bello (law in war) is one of the oldest bodies of international law and aims to regulate the conduct of States and individual participants in an armed conflict, and to protect people and property. The law seeks to balance twin objectives: the needs of the armed forces of a State (or non-State group) to prosecute the armed conflict, and the humanitarian need to protect those who do not, or no longer, take direct part in the hostilities (known as hors de combat or “out of combat”). Initially, the law only regulated the conduct of States in international armed conflicts; now, the law governs the conduct of States and non-State actors, in international and non-international armed conflicts, and contains a plethora of rules, drawn from treaties, customary international law and other sources, covering weapons, methods of warfare, targeting and the treatment of persons hors de combat . All of these ru...

IHL regulates the conduct of hostilities by a number of means, including rules regarding permissi... more IHL regulates the conduct of hostilities by a number of means, including rules regarding permissible targets, restrictions on permissible weapons, and rules on allowable methods of warfare. Three general principles can be observed.

Research Handbook on Remote Warfare

Journal of the History of International Law / Revue d’histoire du droit international, 2021

Yearbook of International Humanitarian Law Volume 17, 2014, 2015

This chapter examines the changing methods of warfare over the last 100 years, how the law has ad... more This chapter examines the changing methods of warfare over the last 100 years, how the law has adapted to respond to these changing methods, and whether the law as it exists in 2014 is still consonant with armed conflict as it exists in 2014. Over the last century, the preponderant type of armed conflict—international armed conflict—has given way to non-international, transnational, and internal armed conflicts. These newly predominant types of armed conflict have also brought with them new participants, new tactics, and new targets. The law of armed conflict has attempted to keep pace with these developments, adopting new comprehensive treaties in 1949 and 1977 (along with a raft of treaties governing permissible means and methods). However, as these new participants employ new or irregular methods to fight their wars, pressures are brought to bear on the existing law of armed conflict. This chapter will use the First World War and its centennial in 2014 as ‘bookends’ with which to frame the discussion of just how wars have changed over the last 100 years, how the law has responded to such changes, and whether the law needs to continue to change in response to altered methods of armed conflict.

Journal of International Humanitarian Legal Studies, 2020

International Law in a Time of Pandemic To say that this issue of the Journal has been produced u... more International Law in a Time of Pandemic To say that this issue of the Journal has been produced under unusual circumstances would be an understatement. When we began work on the issue in March 2020, the seriousness of the 'coronavirus disease 2019' ('covid-19') outbreak was starting to become clear. Already in January, the Director-General of the World Health Organization (who) had declared the covid-19 outbreak a 'public health emergency of international concern' (pheic),1 that is to say, as an 'extraordinary event' deemed under the International Health Regulations 'to constitute a public health risk to other States through the international spread of disease' and 'to potentially require a coordinated international response' .2 In March, the Director-General further declared the outbreak a 'pandemic' .3 The so-called Finagle's law of dynamic negatives (a somewhat lesser-known derivative of Murphy's law) postulates that 'anything that can go wrong, willat the worst possible moment'. This seems to have held true with respect to the covid-19 outbreak from a global perspective. The pandemic hit during an era of increased scepticism in science, a decline of democracy and a rise of authoritarianism, a flare-up of big-power rivalry, and waning multilateralism. As a consequence, the response to covid-19 became a political plaything both journal of international humanitarian legal studies 11 (2020) 187-191

Journal of International Peacekeeping, 2020

In this article, Emily Crawford explores one set of key institutional and legal responses to, and... more In this article, Emily Crawford explores one set of key institutional and legal responses to, and consequences of, the Rwanda genocide – the ictr and the revival of icl that the ictr and the icty heralded. Tracing the development of the concept and institutions of icl, Crawford observes how the case law of the [ad hoc] tribunals, and the ictr in particular, were pivotal in progressively developing the international law of genocide, and the law of non-international armed conflict’.

The Australian Year Book of International Law Online, 2015

Oxford Bibliographies Online Datasets

Journal of the History of International Law, 2017

Levée en masse – the spontaneous uprising of the civilian population against an invading force – ... more Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

British Yearbook of International Law, 2014

International Journal of Communication, Sep 17, 2013

Civilian Participation in Armed Conflict, 2015