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Tuesday, October 4, 2016
YLS Hosts International Humanitarian Law Workshop
An International Humanitarian Law Workshop was held at Yale Law School on Friday, September 30, 2016 and Saturday, October 1, 2016. The two-day event was sponsored by The Center for Global Legal Challenges at Yale Law School and the International Committee of the Red Cross (ICRC).
To open up the workshop, Trevor Keck and Tracey Begley, both of the ICRC, discussed the work of their organization and provided an overview of the law of armed conflict. Keck emphasized the ICRC’s ability to act as a neutral intermediary between parties to a conflict—including non-state actors—and to promote compliance with international humanitarian law. The group discussed concerning trends in international humanitarian law, including a growing “protection gap” in war zones such as Syria, protracted conflicts, and increased migration flows.
The second panel discussed “The Ongoing Conflict in Syria,” and featured former U.S. Ambassador to Syria Robert Ford, Brig. Gen. (ret.) Richard Gross, and Yale World Fellow Mustafa Haid. The panel discussed violations of international humanitarian law committed in the ongoing Syrian conflict. The speakers highlighted the complicated nature of the war, noting there are several legal layers of armed conflict in Syria. The panel evoked many questions about debated areas of international humanitarian law, including whether humanitarian actors can engage in defensive force and the legal implications of the internationalization of non-international armed conflicts. The panel provided a thematic case study for the remainder of the workshop.
During the next panel, “Conflict Classification: How to Classify and Why it Matters,” the ICRC’s Tracey Begley provided an overview of how conflicts are classified, why this classification matters, and how in international humanitarian law applies within each classification. Begley highlighted the importance of classification to the analysis of which law applies — in an international armed conflicts all Geneva Conventions apply, while in a non-international armed conflicts only some of the Conventions are applicable. The protections offered have an impact on both the work of the ICRC and the protections available to armed personal and civilians. Begley further discussed ways to enter an international armed conflict and a non-international armed conflict, the ICRC’s role and mandate in the two different types of armed conflict, and the importance of knowing when a conflict has come to an end.
In a panel titled “Targeting and Civilians Directly Participating in Hostilities,” Brig. Gen. (ret.) Rich Gross, the former top lawyer for the U.S. military, led a discussion about the international humanitarian law rules governing targeting. After outlining the principles of necessity, distinction, and proportionality, Gen. Gross focused on difficult issues in targeting law. These included questions of when a civilian is considered to participate directly in hostilities and the difference between status and conduct-based targeting. The group then discussed real-world examples from U.S. military operations, including Operation Desert Storm and Operation Inherent Resolve.
Colonel Randy Bagwell, Dean of the U.S. Army Judge Advocate General's School, discussed the importance of battlefield status of persons in times of conflict and highlighted in particular the categories of protected persons under international humanitarian law. In a panel titled, “Battlefield Status and Protected Persons,” Colonel Bagwell instructed how the status of a person during conflict determines whether they may be detained or interned and how a person's status determines treatment in armed conflict. He explained how protected persons, including the sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects, are entitled to the greatest protections during armed conflict.
Andrea Harrison from ICRC Washington led off the second day of the conference with a session on Detention & Internment. Harrison discussed the difference between detention and internment, who may be detained or interned, under what circumstances, and what review processes exist. Harrison began by discussing why there is right to be detained in armed conflict, covered the two types of detention (security detention & criminal detention), and discussed how the type of conflict influences who can be detained. The session also covered the responsibilities surrounding transfers and ended with an example of detainees held at Guantanamo.
In a panel titled “IHL & International Human Rights Law,” Rebecca Crootof, the Executive Director of the Yale Law School Information Society Project, presented on situations in which international humanitarian law—that is, the law of armed conflict—may conflict with general international human rights law. In an armed conflict, certain actions may be lawful under international humanitarian law that would otherwise run afoul of international human rights law. She discussed three different models for determining which body of law applies during wartime: one in which international humanitarian law completely displaces international human rights law, another in which the two bodies of law are interpreted in such a way that they do not conflict, and a third in which context-specific determinations are made. The group discussed how to incorporate determinations about which law applies into military rules of engagement.
Another panel titled “Non-State Actors & State Responsibility,” examined the disparity between legal obligations in international armed conflicts and non-international armed conflicts. In response to this problem, Oona Hathaway, Professor of Law at Yale Law School and Director of the Center for Global Legal Challenges, Emily Chertoff ’17, and Zachary Manfredi ’17, discussed conclusions from their article Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors, co-authored with Lara Dominguez ’16, and Peter Tzeng ’16. Relying on Common Articles 1 and 3 of the Geneva Convention and the law of state responsibility, the three co-authors suggest that international humanitarian law may impose duties on states to take affirmative steps to prevent breaches of international humanitarian law by non-state partners.
Ryan Goodman, Professor at NYU School of Law, wrapped up the conference with a presentation on his much-debated paper titled, “Targeting War Sustaining Activities.” Professor Goodman posed the question: are "war-sustaining" objects (such as oil refineries providing revenue to ISIS) legitimate military targets? Many scholars and practitioners have argued that only objects contributing to “war-fighting” capabilities can be targeted, while Professor Goodman argues “war sustaining” objects should also be legitimate targets. The conclusion rests on the scholarly work of Bothe, Partsch & Solf, and six examples of state practice. Professor Goodman described several proposed limiting principles to respond to the slippery slope argument; he proposed targets must have a “definite military advantage,” should distinguish between objects and civilians working with or on these “war-sustaining objects,” be limited to the specific context, and be subject to a proportionality analysis.
The workshop was made possible with the support of ICRC and the Yale Law School Oscar M. Ruebhausen Fund.
Established in 1863, the ICRC operates worldwide, helping people affected by conflict and armed violence and promoting the laws that protect victims of war. An independent and neutral organization, its mandate stems essentially from the Geneva Conventions of 1949. We are based in Geneva, Switzerland, and employ some 14,500 people in more than 80 countries. The ICRC is funded mainly by voluntary donations from governments and from national Red Cross and Red Crescent Societies.
The Yale Law School Center for Global Legal Challenges is an independent Center that bridges the divide between the legal academy and legal practice on global legal issues. It provides a forum where academic experts and students regularly interact with public and private sector actors responsible for addressing global legal challenges. By bringing these communities together, the Center aims to inject new ideas into legal policy debates and grow a new generation of lawyers with a sense of their capacity and responsibility to use international law, foreign affairs law, and national security law to address real challenges facing the nation.