Human Rights and Armed Conflict

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of either of the below subjects:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

The applicability and relevance of human rights to armed conflict has become one of the most debated issues surrounding the use of violence internationally and domestically. Traditionally, human rights law and the law of armed conflict were seen to be complementary but also largely incompatible. Yet both have been converging with the laws of war being increasingly ‘humanised’ and human rights increasingly ‘militarised.’ What is involved in this cross-fertilisation? Might it have unintended consequences? For example, some human rights activists have supported war ‘in the name of human rights’ while many human rights NGOs have considered issues relating to the laws of war to be outside their remit. Does this mean human rights support war? When it comes to the regulation of armed conflict, the laws of war are widely held to be the applicable ‘lex specialis’ in armed conflict, as opposed to human rights. What does it mean for the laws of war to displace human rights as the regime of choice to regulate certain types of violence? Is it a triumph of humanitarianism or of violence?

Principal topics include:

• To what extent have human rights featured in justifications of resort to violence within and across boundaries? What is the relevance of notions such as ‘the responsibility to protect,’ ‘human security,’ ‘the human right to security’ or ‘protection of civilians’ in building a new global regime of violence?
• What is an armed conflict? How does it displace the normal applicability of human rights provisions? How does the changing nature of armed conflicts justify changes in normative emphasis?
• What is the existing jurisprudence on the applicability of human rights to armed conflict, with particular emphasis on relevant case law of the European and Inter-American Courts of Human Rights?
• How and when do human rights apply extra-territorially? The subject will look at issues arising from military attack, occupation, detention, handover of prisoners, rendition, etc.
• How might human rights help address differently issues of (i) gendered violence, (ii) new weapons such as drones, or (iii) targeted assassinations?
• Should non-state actors be recognised a greater power to engage in violence and if so in exchange for what?
• Which actors are legitimised by the laws of war or human rights and how do modes of intervention in armed conflict differ?
• How might the emphasis on human rights change the focus of accountability?
• Do international organisations engaging in violence have human rights obligations? What military deployments fall short of belligerency?

A student who has successfully completed this subject will:

• Have a critical understanding of the legal concepts of international and non-international armed conflict, military occupation and peacekeeping
• Have an advanced understanding of the interplay between the legal regimes applicable to the different states of violence, in particular human rights law and international humanitarian law as well as a sensitivity to the normative choices that underlie the selection of one regime at the expense of another
• Be able to theorise, assess and critically evaluate the application of law to minimise harm to individuals in situations of violence
• Be able to demonstrate a highly developed understanding of the law and critical judgment as a practitioner and advocate in the interstices of the fields of international human rights law and international humanitarian law.

• Take-home examination (5,000-6,000 words as specified in the subject reading guide) (100%) (29 July - 1 August)
  or
• 10,000 word research paper (100%) (31 August) on a topic approved by the subject coordinator

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.