We arrived at the Palace Radziejowice on Monday, and official sessions for the International Humanitarian Law (IHL) training course began yesterday. Even though it’s been only two days, I am already highly impressed with this course, the level of discourse, and the expertise of not only our presenters, but my fellow participants.
Tuesday’s sessions began with a discussion on the scope of application of IHL, and the fundamental principle of distinction, which would inform our conversations throughout the rest of the course. I came to this course with a relatively basic understanding of IHL; my knowledge stemmed from my American Red Cross IHL Instructor Training (which I took in 2008) and the accumulated knowledge since then from IHL Instructor calls, online web seminars, news, and my own bits of research I would do to prepare for teaching the IHL course. Understandably, this leaves gaps, particularly considering that I have no formal legal training. So this course is already proving valuable in terms of fleshing out my understanding of things that to legal scholars would seem basic, but are things I hadn’t encountered before in my (relatively) limited exposure.
For example, one of the challenges with IHL is the difference in its application between international armed conflicts (IAC) and non-international armed conflicts (NIAC). Depending on the classification of the conflict, different pieces of IHL may or may not apply, which is further confounded if the involved states aren’t signatories to the Additional Protocols. I had always thought of POW status and combatant status as applicable in all conflicts, but in our discussion on distinction I learned that these legal statuses are only applicable in IAC, which creates all sorts of challenges when dealing with individuals who occupy the same kinds of roles in NIAC, because they aren’t necessarily afforded the same protections or rights.
Distinction poses one of the most fundamental challenges in the waging of conflict. Given the nature of conflict in today’s world, it has become very difficult to make distinctions. Civilians intermingle with combatants, there are fewer distinctive uniforms, and more informal (non-state) fighters. Which brings us to the concept of “direct participation in hostilities” (DPH), a term describing non-combatants who somehow cross the line and become active participants in the conflict. There has been a lack of criteria to distinguish peaceful civilians and those taking DPH. Within the past decade, the ICRC conducted a long study into the matter, creating interpretive guidance for this issue, to serve as recommendations for addressing this challenge. However, these guidelines don’t technically have a binding legal value, though some of the points contained in the guidance are beginning to become part of customary international humanitarian law.
Already this course has given me a lot to think about and opened my eyes to some more of the complexities involved in the study and application of IHL. I look forward to delving deeper into these issues over the next week!
Ports in the Storm 