BEN CLARKE - PhD Student Profile

Ben is based in Fremantle where he is a Senior Lecturer in Law at the College of Law, University of Notre Dame Australia. He completed his Bachelor of Laws degree at the University of Tasmania (1990) and Master of Laws at Bristol (1992). Ben has previously worked as a criminal lawyer at Tharpuntoo Aboriginal Legal Service, representing indigenous clients throughout Cape York Peninsula. He has also worked as a solicitor in private practise for a criminal law firm on the Gold Coast.

Abstract of PhD Thesis
'Occupation, Resistance and Jus ad Bellum: When is it lawful to forcibly resist foreign occupation of a sovereign state?'
(expected completion date: September 2007)

Ben's thesis explores a number of legal questions that arise where occupying forces meet sustained armed resistance:

• How is the legitimacy of such resistance to be assessed under international law?
• What are the applicable norms?
• Do these norms differ in the context of occupation of sovereign States rather than colonies or non-self governing territories?
• Does the contemporary jus ad bellum and jus in bello provide an adequate framework for an assessment of the juridical status of non-State actors who are involved in armed resistance?

Applicable jus ad bellum norms include the right of national self defence, the right to struggle against ‘alien occupation’ (in the exercise of the right of self determination), and recourse to armed force to resist occupation where the Security Council has condemned the occupation.

Matters falling within the jus in bello include the qualifications of belligerency, the scope for lawful participation in hostilities by resistance forces not aligned to the armed forces of a State, civilian participation in hostilities (the levee en masse), permissible means and methods of resistance to occupation, the targeting of collaborators by resistance forces, and the involvement of non-State actors (including terrorist organisations such as Al Qaeda) in resistance to belligerent occupation.

Please select for publications

(January 2006)

Contact details:
bclarke@nd.edu.au