The Continuing Relevance of the Doctrine of Combat Immunity?

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ANU College of Law

6a Fellows Road Lecture Theatre

Acton, ACT 2601

Australia

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Going to war is the most profound exercise of public power, and killing in war is its most profound expression. As much as killing in war, or injuring, capturing and destroying in war, has been occurring since ancient times, there is very little in domestic or international law that expressly authorises it. In an age where statutory authority is required to authorise the exercise of public power in the finest detail, killing in war stands as a strange anomaly. Rather than providing positive authorisation, the common law has addressed this issue through the doctrine of combat immunity and international law has the closely related – but not identical -concept of combatant immunity. The wars in Iraq and Afghanistan have led to a series of cases which have tested these concepts and, perhaps, posed yet further questions about them. Combat and combatant immunity now raise some of the most challenging legal issues of our time, particularly in relation to the authority to kill and destroy in war.

This seminar will briefly explore both the origins in Australian law of the doctrine of combat immunity, as well as possible ways forward in addressing the questions it raises.

Dr Cameron Moore is a Senior Lecturer in the School of Law at the University of New England. He is also an Adjunct Senior Lecturer at the Australian National University. His publications include the book ADF on the Beat: A Legal Analysis of Offshore Enforcement by the ADF (2004) and other articles and chapters on the Australian Defence Force and maritime security. Between 1996–2003, Cameron was a Royal Australian Navy Legal Officer. He completed a PhD thesis through the Australian National University in 2015 on the Australian Defence Force and the Executive Power.

A/Prof Rob McLaughlin is co-director of the Centre for Military and Security Law in the Australian National University College of Law. He is a Captain in the Royal Australian Naval Reserve, and whilst serving in the RAN held the positions of Fleet Legal Officer, Director Naval Legal Service, and Director of Operations and International Law. His particular research interests are in military administrative law, maritime law enforcement, and operations law. He completed his PhD through the University of Cambridge in 2005, on United Nations maritime peacekeeping operations.

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ANU College of Law

6a Fellows Road Lecture Theatre

Acton, ACT 2601

Australia

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