Dr Katherine Fallah specialises in public international law and criminal law and her work is principally concerned with the global regulation and administration of violence. She explores the acute contradictions inherent in international law's execution of its humanitarian project, with a particular focus on mercenaries and private military violence. Katherine holds a PhD in international law from the University of Sydney, and was a member of Faculty at Sydney Law School before joining UTS Law in 2011. She has held visiting fellowships and doctoral research positions at Harvard Law School, the Institute for International and Comparative Law in Africa, the Paris Fondation Maison des Sciences de l’Homme, and the European University Institute, Florence. Before taking up her academic appointments, Katherine served as a Prosecution Officer at the NSW Office of the Director of Public Prosecutions, Research Associate to the Judges of the Federal Court of Australia, and paralegal and law clerk at major commercial law firms in Sydney. She has worked with Professor Jenni Millbank as Senior Researcher on an ARC project on the ‘particular social group’ ground in the Refugees Convention and has contributed to a variety of public interest projects, including in the area of transgender rights and as a volunteer with the death row defence team at the Louisiana Crisis Assistance Centre in New Orleans. Katherine has been named a 2019 Kathleen Fitzpatrick Visiting Postdoctoral Fellow with the ARC Laureate Program in International Law at Melbourne Law School, where she will work on her project on 'Framing the Mercenary in International Law'.
- Admitted as a Solicitor of the Supreme Court of New South Wales (2007–)
- Member of the Australian and New Zealand Society of International Law (2016–)
- Member of the International Humanitarian Law Advisory Committee of the Australian Red Cross (2009–2018)
- Member of the Australia and New Zealand Professional Association for Transgender Health (2016–)
- Alumna of the Harvard Law School Institute of Global Law and Policy
- Recipient of the Prix Jean-Pictet for International Humanitarian Law (2003)
- Recipient of the Audre Rapoport Prize for Scholarship on Gender and Human Rights (2018)
Research interests include:
- Framing the mercenary in international law
- Private military and security contracting
- Outsourced and offshore immigration detention
- Strategic litigation
- Transparency in warfare
- New technologies of war
- Militarised policing
- Transgender rights
Courses taught at UTS
- Public International Law
- Principles of Public International Law
- International Humanitarian Law
- International Criminal Law
- International Human Rights Law
- Human Rights Law
- Criminal Law and Procedure
- Jessup International Law Moot
Courses taught at other institutions
- Public International Law
- Private International Law
- War Law: International Humanitarian Law
- Civil and Criminal Procedure
- International Law and Australian Institutions
Fallah, K 2019, 'Gender and the Genocide in Rwanda: Women as Rescuers and Perpetrators, by Sara E. Brown', State Crime, vol. 8, no. 1, pp. 135-139.
In its everyday operation, the law presumes to narrate trans stories and shape trans lives. This article shines a light on law's claims to authority over transgender identities and transgender bodies, and offers an alternate, intimate account of one transgender person's interactions with law and society. The stories recounted here offer glimpses into the life of Georgio. Written from the perspective of someone who has had the privilege of bearing witness to his journey, this article assembles incomplete fragments of the joys and frustrations of Georgio's gender transition and invites deeper reflection on legal assumptions about the lives of transgender people. It represents an attempt to breathe humanity into law's cold scripts of gender identity.
Fallah, KL 2006, 'Perpetrators and Victims: Prosecuting Children for the Commission of International Crimes', African Journal of International and Comparative Law, vol. 14, no. 1, pp. 83-103.View/Download from: UTS OPUS
Everyone talks about "the impact of war on children". But how do you measure the impact of war? Who suffers the greater horror, the child who is violated, or the child who is forced to become a perpetrator? We are the victim, the perpetrator and the witness, all at once.1 Where an individual can be held responsible for their actions, failure to bring them to justice will support impunity and lead to a denial of justice to their victims. It may even encourage the use of children to commit atrocities.2 , We were saying: Rule, glory, power - is all for us. But we were only dogs of the king, and we enjoyed it for a very short period
Fallah, KL 2006, 'Corporate Actors: The Legal Status of Mercenaries in Armed Conflict', International Review of the Red Cross, vol. 88, no. 863, pp. 599-611.
Corporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a ``mercenary. It demonstrates that even mercenaries receive protection under international humanitarian law
Fallah, KL 2007, 'Regulating private security contractors in armed conflicts' in Gumedze Sabelo (ed), Private Security in Africa: Manifestation, Challenges and Regulation, Institute for Security Studies, South Africa, pp. 97-123.
Fallah, KL 2018, 'Private Military Contractor Regulation and the "Muscle Trade" in Asia, Africa and the Pacific: Hidden Narratives of Contractor Vulnerability and Exploitation', Harvard Law School Institute for Global Law and Policy Scholars Workshop, Bangkok, Thailand.
Fallah, KL 2018, 'Humanitarians and the Production of Corporate Violence on the Battlefield: A Provocation in Four Frames', Corporate Power in Global Society II, Harvard Law School.
The laws of war and private military violence are co-constitutive. At the first conference on Corporate Power in Global Society, I built the case that private military contractors exercise power and seek legitimacy by shaping war and shaping the laws of war. This time, I approach the problem of private military violence from another angle, looking instead at what are ostensibly humanitarian legal strategies of resistance to the private military industry. I argue that four key strategies deployed by humanitarians (the move to 'muscular humanitarianism'; a focus on 'human security and development'; the embrace of multi-stakeholder regulatory initiatives; and the proscription of mercenarism) have each worked to produce corporate violence on the battlefield. Rather than constraining violence in war, these strategies have served to consolidate corporate power and entrench the private military contractor's position on the battlefield. I explore the idea that this phenomenon is a product of the humanitarian sector's failure to engage in self-reflection and critique. Humanitarian lawyers and policy-makers have underestimated corporate power and have overestimated the emancipatory potential of international law.
Fallah, KL 2018, 'Strangers with Knives Between Their Teeth: Mercenarism's Escape from the Turn to Criminalisation in International Law', Third World Approaches to International Law Conference, Faculty of Law, National University of Singapore.
The crime of mercenarism is the international crime that never was. Although it was one of the first crimes to be proscribed in international and regional treaties, mercenarism escaped the overwhelming turn to criminalisation in international law: the mercenary conventions did not translate into a practice of domestic or international prosecutions for the specific crime of mercenarism, and the offence of mercenarism never found its way into the statutes of the ad hoc international criminal tribunals or the International Criminal Court ('ICC'). Instead, war-fighting for profit has been normalised and legally-privileged through a series of international regulatory efforts that see private military contractors invited to self-regulate, contribute to multi-stakeholder oversight initiatives, and submit to voluntary codes of conduct that promise a 'value-add' for industry.
In this paper, I offer a TWAIL account of international law's half-hearted and inchoate efforts at criminalising mercenarism. First, I argue that the prohibition of mercenarism was largely a concern of decolonising and decolonised states, and I contend that from the very beginning, the weak law of mercenarism was an example of a fundamental refusal to accede to Third World demands of international law. The collapse of the norm against mercenarism is emblematic of international law's routine privileging of the violence of the West in the name of universality.
Second, I ask what we are to make of mercenarism's quiet departure from international criminal law. While much discussion of the global inequalities produced by the ICC turns on practices of selective application of the Rome Statute and a prosecutorial focus on suspects from the Global South, in this paper I pursue another TWAIL concern: identifying inequalities produced at the substantive, rather than procedural or structural, level of international criminal law. I argue that the failure to designate mercenarism as an international crime withi...
Fallah, KL 2018, 'Acquittals and the Stakes of International Criminal Justice', 2018 Australian International Criminal Law Workshop, University of Tasmania, Hobart.
What is at stake in an ICC prosecution, and how are these stakes laid bare in the aftermath of the acquittal of a high-profile accused? Through a close examination of the reception of the recent Bemba acquittal, this paper interrogates the claims and aspirations of the international criminal project and asks what we mean when we seek to frame an acquittal as a 'success' or a 'failure' for international criminal law. In this critical work, I argue that mainstream reactions to the acquittal suggest that we have pinned too much hope on the Bemba case in particular, and we continue to ask too much of the international criminal trial as a means of accounting for large-scale atrocity.
Fallah, KL 2018, 'Restraining or Legitimating Contractor Violence? An Appraisal of Multi-Stakeholder Initiatives to Regulate the Private Military industry', Second Annual Australian Red Cross International Humanitarian Law Symposium, University of Tasmania, Hobart.
Fallah, KL 2017, 'Waltz with Al-Bashir: How South Africa's Litigation Disrupts Dominant Narratives of the ICC's 'Africa Problem'', 5th Australian International Criminal Law Workshop, Where Are We Now? Looking Forward to the 20h Anniversary of the Rome Statute, Melbourne Law School.
At the close of its first fifteen years of operation, the ICC's caseload has been almost exclusively African, and the embattled Court faces the prospect of a mass exodus on the part of African signatory States. The practice of the OTP has given rise to well-deserved charges of selective prosecution and has undermined the Court's claims to the administration of universal justice. As the African Union advances its "Withdrawal Strategy", and a handful of African States take steps to withdraw from the Rome Statute, Africa has begun to bear the brunt of concerns about the Court's legitimacy crisis.
Yet, the African Union's withdrawal strategy has hinged not upon allegations of selective justice, but upon a narrower normative objection to Court's failure to accord immunity to incumbent Heads of State of non-signatory States. This is not a uniquely "African" concern, but one that is shared by many Western States. What has come to be conceived of as an "African" problem is better conceived of as a broad legitimacy problem, albeit with post-colonial dimensions.
This paper calls for a more nuanced understanding of the African region's relationship to the ICC by taking a close look at South Africa's role in the ICC's battle for legitimacy. In particular, it challenges the tendency to discount variances among States within the African Union and to disregard discord among institutions within African States themselves. The dominant narrative sees South Africa's ICC-related litigation as a domestic enactment of the ICC's legitimacy struggle with Africa. This paper offers an alternate account, which sees the litigation as an enactment of an internal clash of legal institutions (the executive and the judiciary) and a clash of international legal norms (immunity and impunity). In other words, it is an enactment of contests that are routinely played out in Western States and are by no means uniquely "African".
Fallah, KL 2014, 'Performing the Ceremonies of Law: Quasi-Legal Accountability Measures as Legitimation Bids', Law and Boundaries / Droit et Limites, Sciences Po Law School, Paris.
Fallah, KL 2014, 'Making War and Making Law: The Corporation in the Global Regulation of Military Violence', Corporate Power in Global Society: Explication, Critique, Engagement, and Resistance, Harvard Law School.
Fallah, KL 2013, 'Constructing the "Humanitarian": The Regulatory Impact of Self-Characterisation of the Private Military Industry', 'Power, Privilege, and the Pursuit of Justice: Legal Challenges in Precarious Times', Law and Society Annual Meeting, Boston.
Fallah, KL 2013, 'Corporate Construction of "Humanitarianism": The Regulatory Impact of Self-Characterization of the Private Military Industry', IGLP: The Conference, Harvard Law School, Institute for Global Law and Policy.
Fallah, KL 2013, 'Private Military Contractors and the Construction of 'Humanitarianism'', Legal Research 3 Conference, Sydney Law School, Sydney.
Fallah, KL 2012, 'Private Military Violence and the Inner Boundaries of International Law: Reading 'Unjust Combatancy' Theories Alongside the Jus ad Bellum / Jus in Bello Distinction', Conference on Law and Boundaries / Droit et Limites, Sciences Po Law School, Paris.
Fallah, KL 2011, 'International Law and the Right of Self-Defence', Centre for International and Public Law and Australian Centre for Military Law and Justice Forum, Tampa and 9/11: Ten Years On - Reflections on Developments in International Law, Australian National University, Canberra.
Fallah, KL 2011, 'Strangers with Knives Between Their Teeth: The Relationship between International Law and Domestic Efforts to Outlaw Mercenary Activity in Africa', Institute for International and Comparative Law in Africa Research Discussion Series, University of Pretoria, South Africa.
Fallah, KL 2008, 'Citizen Soldiers and Alien Outlaws: National Membership and the Transformation of Military Violence', Fourth Global Conference on Pluralism, Inclusion and Citizenship, Salzburg, Austria.
Fallah, KL 2008, 'Criminalising Mercenarism in Africa: Legal Challenges and Options for Reform', Conference on the Elimination of Mercenarism in Africa, African Union Headquarters, Addis Ababa, Ethiopia.
Fallah, KL 2007, 'Regulating Private Security Contractors in Armed Conflict: International Humanitarian Law and the Principle of Distinction', Conference on the Regulation of the Private Security Sector in Africa, Institute for Security Studies, Pretoria, South Africa.
Fallah, KL 2007, 'At War with the Rule of Law: Guantánamo, Iraq and Legal Black Holes', Racism, Guantanamo Bay and the War on Terror, University of Sydney, Australia.
Fallah, KL 2006, 'Terrorism and the Rule of Law: How American Exceptionalism in Guantánamo Undermines the Legal Protection of Private Military Contractors in Iraq', Australasian Law and Society Conference, Right or Racket? The Protection of Law, University of Wollongong, Wollongong, Australia.
Fallah, KL 2006, 'Straining at the Periphery? International Humanitarian Law and its Application to the Private Military Industry in Iraq', Emergence of Customary International Humanitarian Law Conference, Flinders University, Adelaide, Australia.
Fallah, KL 2017, 'Making War and Making Law: The Generation of International Legal Norms to Regulate Private Military Violence'.
Private military violence occupies a space at the periphery of international law, uncomfortably straddling the lines between the public and the private, the domestic and the international, armed conflict and law enforcement, civilian and combatant, and even personnel and materiel. This thesis approaches the problem of private military violence by considering how international humanitarian law's inner boundaries and core categories shape and constrain ongoing efforts to regulate the industry. It argues that private contractors, like other non-State actors in war, challenge some of the core assumptions of international law and expose critical contradictions in international law's execution of its humanitarian project.
In questioning the sharpness of three of international humanitarian law's core distinctions, this study of private military contractors provides an entry point for a deeper critique of the laws of war. Given the position of contractors at the periphery of international law, the ongoing contest over their legitimacy offers important insights into the ways in which the international regulation of warfare involves strategic, normative decisions about the privileging and ranking of different forms of violence. This study considers the place of private military contractors in international law's ordering of irregular violence.
The thesis argues that, like other international actors, the private military industry exploits international law's inner boundaries and contradictions, using them as manoeuvring tools to position themselves as legitimate actors in armed conflict. I build on the work of critical scholars such as David Kennedy and Nathaniel Berman to challenge international law's claims to universality and objectivity. I argue that by their structure and content, the laws of war systematically privilege some actors while stigmatising others, and that contractors have proven remarkably successful at positioning themselves on the side of privilege. ...