Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University

November 4, 2011

Challenges to the Application of IHL to Afghanistan

Mr. Vincent BernardEditor-in-ChiefInternational Review of the Red Cross

Mr. Claude BruderleinDirectorProgram on Humanitarian Policy and Conflict Research at Harvard University

Challenges to the Application of IHL to Afghanistan

November 4, 2011Live Web Seminar

The International Review of the Red Cross

www.journals.cambridge.org/IRC

www.icrc.org/eng/review

• Forum for debate on International Humanitarian Law, policy and action during armed conflict and other situations of violence

• "Conflict in Afghanistan" I & II• Building up stability• Adequacy of the law• Humanitarian access

• Future themes of the Review• Armed groups I & II• Future of humanitarian

action• Occupation• New technologies and

warfare

Challenges to the Application of IHL to Afghanistan

Presented by HPCR and the International Review of the Red Cross

The conflict in Afghanistan is in its tenth year, and the situation continues to challenge protection efforts under international humanitarian law (IHL). While the civilian population has borne the effects of decades of conflict and instability, none of the previous conflicts have raised such direct questions regarding means and methods of implementing IHL.This live web seminar will address a number of issues related to protection, including: The role of IHL in regulating hostilities, particularly

issues related to targeting, status of individuals, and the question of the geography of armed conflict.

The current nature of detention operations in Afghanistan, and the legal framework(s) by which these operations are regulated.

The state of humanitarian operations, the role of humanitarian actors such as the ICRC, and the challenges of access to vulnerable populations.

Panelists Markus CottICRC

Matthew HoverNaval War College

Gabor RonaHuman Rights First

Fiona TerryIndependent Researcher

Markus Cott is Deputy Head of the International Committee of the Red Cross delegation in Kabul. He was born in 1969 in Switzerland, and has been been working for the ICRC since 1999 in 6 different countries. His first mission was in

Afghanistan during Taliban times. He has been Deputy Head of ICRC in Afghanistan for two years. Besides having studies theology and philosophy, he holds a Master in Social Policy from the London School of Economics.

IHL challenges within the challenges of Afghanistan

• Social – economic – political challenges and

humanitarian/IHL challenges

• 10 years after: still one of the poorest

countries on earth

• Situation of civilian population: How to remain

neutral? – Where to address grievances? How

to access basic services?

IHL challenges within the challenges of

Afghanistan

• Transition: Disengagement of international

community:

• What is the future?

• Residual responsibility: Respect and ensure

respect:

• Who is responsible?

• Conflict going local – proliferation of armed

actors:

• Who is who?

• Interest in IHL and the respect of the

adversary

Major Matthew R. Hover joined the faculty of the International Law Department in June 2011 after graduating with distinction from the College of Naval Command and Staff. Before coming to the War College, he served as the Regiment Judge Advocate for the 160th Special Operations Aviation Regiment (Airborne). This assignment included deployments as the legal advisor for Joint Special Operations Task Forces in both Iraq and Afghanistan

Other assignments include: Chief of Administrative & Operational Law, 4th Infantry Division (2007), Chief of Operational Law, Multi National Division-Baghdad, Operation Iraqi Freedom (2006); Trial Counsel and Operational Law Attorney, 4th Brigade Combat Team, 4th Infantry Division (2005); Chief of Legal Assistance, 4th Infantry Division (2004); and Rifle Platoon Leader, Scout Platoon Leader, and Adjutant, 2nd Battalion, 35th Infantry Regiment, 25th Infantry Division (Light), Schofield Barracks, Hawaii (1997-2000).

Major Hover received a J.D. in 2003 from The Ohio State University Moritz College of Law, and then entered the Judge Advocate General’s Corps. Major Hover also received a Masters of Law Degree in Military Law from the U.S. Army Judge Advocate General’s Legal Center and School in 2008, and a Master of Arts in National Security and Strategic Studies from the Naval War College in 2011.

The “Geography of War”

• The U.S. Government position on targeting Al Qaeda outside of Afghanistan

• The concept of the "hot battlefield”

• The concept of "unwilling or unable" from neutrality law

• The trend of applying IAC law into NIAC to fill gaps

YES – NIAC Between U.S. and AQ

Does Article 51 allow for Self Defense against an armed attack by a non-

state actor?

Was 9/11 an armed attack by AQ, and did

the U.S. response create armed conflict?

WHERE?Originally Afghanistan

b/c Taliban regime “unable or unwilling”

Do you accept “unable or unwilling” standard for AQ located in other

States?

NO

YES

NO

“Geography of War”Is it legally required to take

place in a defined geographical area?

NO Must apply law enforcement model outside of AFG

YES

Mapping out the Concept of “Geography of War” Utilizing U.S. Action against Al Qaeda

Individual analysis for each response – U/U,

Imminence, Necessary, Proportional

Combatant targetable under LOAC upon State

consent or U/U determination

Is action against AQ outside of AFG based on Self Defense or

status?

StatusSelf-Defense

Gabor Rona is the International Legal Director of Human Rights First, where he advises its programs on questions of international law and coordinates international human rights litigation. He also represents Human Rights First with governments,

intergovernmental and non-governmental organizations, the media and the public on matters of international human rights and international humanitarian law (the law of armed conflict). He also teaches international humanitarian law at Columbia Law School. Before coming to Human Rights First, Gabor was a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva. At the ICRC he focused on the application of international humanitarian and human rights law in the context of counter-terrorism policies and practices.

US detention issues in Afghanistan

I. Challenges to legal basis - importance of the distinction between IAC and NIAC, between international law and domestic law. Where to find "grounds and procedures?"

II. What process is due? The role of human rights law re: detention without trial.

III. What process is due? The role of human rights law re: Afghan trials.

IV. What process is due? The role of human rights law re: transfer of detainees to Afghanistan.

V. Targeting and detention: same or different?

Fiona Terry is an independent researcher on humanitarian action. She has spent most of the last 20 years involved in humanitarian operations in different parts of the world including Northern Iraq, Somalia, the Great Lakes region of Africa, Liberia and Sudan. She was a research director

for Médecins Sans Frontières in Paris from 2000-2003 working on North Korea, Sierra Leone and Angola, before spending three years with the International Committee of the Red Cross in Myanmar (Burma). Fiona Terry holds a Ph.D. in international relations and political science from the Australian National University and is the author of Condemned to Repeat? The Paradox of Humanitarian Action (Cornell University Press, 2002), which won the 2006 Grawemeyer Award for Ideas Improving World Order. More recently she has been teaching at Duke University in North Carolina, and undertaken several in-depth studies for the ICRC including on the practice of neutrality in Sudan and Afghanistan, and on the protection of health care in Afghanistan. She is currently based in Kathmandu, Nepal. She is a member of the editorial committee of the International Review of the Red Cross and wrote an article on humanitarian action in Afghanistan for the March 2011 issue.

Actions Speak Louder than Words: Reasserting the Neutrality of

Humanitarian Action in Afghanistan

1. How the ICRC reasserted its neutrality in Afghanistan following the murder of an ICRC water engineer in March 2003.

2. The continuing constraints to accessing Afghans in need of humanitarian assistance.  

Questions and comments

Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University

HostsVincent Bernard

Claude Bruderlein

ProducerElizabeth Holland

Technical DirectorJames Brockman

Production TeamDustin Lewis, Christina

Blunt & Anaïde Nahikian

Panelists Markus CottICRC

Matthew HoverNaval War College

Gabor RonaHuman Rights First

Fiona TerryIndependent Researcher

Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University

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