Ports in the Storm

We’re wrapping up our first week here, and the past 2 days we’ve had some major highlights in the discussion as far as I’m concerned. I feel like I couldn’t possibly do justice to all of our speakers and guests and the intricacies they’ve brought to the table, so I’m picking and choosing based on my own personal interests.

Yesterday we looked at the intersection between IHL and Human Rights Law, two bodies whose basic purposes are linked at a basic desire to protect vulnerable populations and ensure human dignity. Our speaker from the United Nations Office of the High Commissioner for Human Rights sparked some heated and fascinating discussions regarding the application of the two bodies of law depending on specific circumstances. The discussion, of course, revolved around when these two bodies of law convene: Human Rights Law, concerned primarily with how states treat their own citizens (or individuals within their territory) and IHL, concerned with protecting civilians and other persons hors de combat (out of the conflict) during times of armed conflict. There are pieces of both that are arguably applicable simultaneously – so how does one determine which set of rules prevails? It’s a complicated discussion, including considerations of lex generalis and lex specialis that veer farther into legalese than I would normally be dealing with.

Today, we were treated to two outstanding discussions, one on the conduct of hostilities and one concerning weapons and issues of targeting. Both were absolutely fascinating, revolving around the concepts of achieving goals from the military perspective while still abiding by IHL and honoring the principle of distinction. Conducting hostilities is a matter of  balancing decisions in terms of what is considered ‘excessive’: balancing military necessity and humanitarian concerns. Operationally its quite difficult because you’re talking about rules that have to be applied, and in practice they are applied under a great deal of pressure and in the heat of the moment. These decisions are inherently about life & death which adds an extra layer of difficulty and importance. Here we focus on three basic principles: distinction, proportionality, and precaution.

The starting point for our afternoon session on weapons was that it’s not a question of the legality of each weapon specifically, but about how we can take into account all of these issues we’ve been discussing (particularly distinction, proportionality, and precaution) when making decisions about which weapons to use in any given situation, and how to target them and deploy them. The most important part is how it really works in the field during a dynamic targeting process. We discussed the concept of “the dilemma of the strategic corporal”.  This is the notion that leadership in complex, rapidly evolving mission environments devolves lower and lower down the chain of command to better exploit time-critical information into the decision making process, ultimately landing on the corporal, the lowest ranking non-commissioned officer. This was followed by a fascinating discussion on the law of armed conflict (LOAC) and two cardinal principles of 1) no indiscriminate attacks, and 2) no unnecessary suffering. An interesting piece to look at for more information is the Rules of Engagement Handbook, from the International Institute of Humanitarian Law, developed in Sanremo in 2009.

It’s been an engrossing and active first week. This weekend we go on an excursion offsite, and the Krakow for a brief break before we get back into sessions on Monday.

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!

Earlier this year, I was lucky enough to be asked to apply for the 30th Course on International Humanitarian Law (IHL) organized by the International Committee of the Red Cross (ICRC) and hosted by the Polish Red Cross, bring held in Warsaw, Poland from 27 August to 6 September, 2012. I was selected, along with the new IHL legal counsel from National HQ to represent the American Red Cross at this prestigious training course. The course is 10 days of intensive study in IHL, including 32 participants from 24 countries and a variety of backgrounds, including a number of Red Crossers, of course, but including others from various Ministries, MSF, HRCand other NGOs, as well as PhD and law students from several universities. It’s being held at Palace Radziejowice, 40 km outside of Warsaw.

I arrived in Warsaw on Sunday, 26 August, with just under 24 hours before I needed to report at the Polish Red Cross office and meet my cohorts. I did get a chance to do some sightseeing in that time, which I was grateful for, never having been to Poland before, or indeed, never being this far east in Europe before.

After arriving at the Polish Red Cross office on Monday afternoon, I began to meet the rest of the participants who I will be sharing the next 10 days with, including my to-be roommate, Hanneke from The Netherlands. After a long drive through rush hour traffic we arrived at the Palace, were shown to our rooms, had a nice light dinner and did some socializing, introducing ourselves and sampling food and drink specialties from across the nations represented. Then we all retired to rest up (and try to recover from jet lag) before our first full day of the course.

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