2017 IHL Roundtable | Int’l Humanitarian Law: Challenges & Tensions from the Perspective of NGOs

Columbia Law School, USA | 13 April 2017

A roundtable discussion of contemporary IHL challenges confronting international organisations, ranging from the problem of foreign fighters to human rights law on the battlefield, and IHL in negotiations with the FARC. Keynote speakers included,

Mwatana’s experience in the middle of the war in Yemen

Radhya al-Mutawakel is a human rights defender. She is the chairperson and co-founder of Mwatana Organization, an independent Yemeni organization aiming to defend and protect human rights depending on investigative research methodology to issue statements, reports, and documentary films. Mwatana also works on advocacy, human rights awareness, and providing legal support to the victims of arbitrary detentions. Al-Mutawakel has been working in the field of human rights since 2004 covering different topics including war crimes, arbitrary detentions, enforced disappearance, and freedom of press. She graduated from the Faculty of Mass Media and Communication and holds two high diplomas on gender studies and political science.

Promoting human rights law in situations of armed conflicts: some challenges and solutions

Mr Jonathan Horowitz is a senior legal officer for the Open Society Justice Initiative where he focuses on issues of human rights, counterterrorism, and the law of armed conflict. Prior to joining the Justice Initiative, Mr. Horowitz worked at the U.S. Embassy in Kabul, Afghanistan where he advised on detention policies. Previously, he was an Open Society Foundations grantee documenting detainee and night-raid abuses in Afghanistan. Mr. Horowitz has also worked as a Sudan/Chad analyst at the International Criminal Court and as a consultant for Human Rights Watch. From 2005 to 2007, he was a U.N. human rights officer in Sudan documenting and reporting on human rights abuses and international humanitarian law violations in Darfur.

The Protection of Civilians under International Humanitarian Law: Operational Challenges and Legal Developments

Ms Sahr MuhammedAlly is the Director for MENA and South Asia at the Center for Civilians in Conflict. In this role she advises and provides technical assistance to governments, militaries, and international organizations on civilian protection and harm mitigation. Her expertize includes reduction of civilian harm and post harm assistance during combat operations, trainings on civilian protection, and civilian casualty tracking mechanisms. Sahr has worked for over 15 years in the fields of armed conflict and human rights including in Afghanistan, China, Indonesia, Iraq, Malaysia, Nigeria, Pakistan, Syria, and Yemen. Sahr previously worked at Human Rights Watch and Human Rights First and practiced law at Gibbons P.C. and is a graduate of Mount Holyoke College and Brooklyn Law School (cum laude).

Strategic challenges from the perspective of a humanitarian organisation

Mr Scott Paul is Senior Humanitarian Policy Advisor at Oxfam America, where he focuses on the intersection of law, financial services, policy, and humanitarian emergencies. A graduate of Columbia College and the New York University School of Law, Paul previously worked at CIVIC and Citizens for Global Solutions.

The Future of ‘Zero Tolerance’ Policies in Peacekeeping

Melbourne Law School | 21 April

This workshop revisited the UN Secretary-General’s 2003 Bulletin (SGB) which elaborated a policy of ‘zero tolerance’ of sexual exploitation and abuse by UN staff in peace operations. The regulatory impact of the Bulletin has been questioned, given continuing serious allegations of abuse in a number of operations. The Bulletin has also been the subject of sustained critique for its paternalist approach to sexual activity. This workshop assessed the theory and practice associated with the Bulletin and considered other forms of regulation of peacekeeping sex.

The aim of the Workshop was to identify practical directions for reform of the SGB, speakers included.

Professor Bruce Oswald Melbourne Law School
Professor Christine Chinkin LSE
Dr Melanie O’Brien TC Beirne School of Law
Professor Dianne Otto Melbourne Law School
Dr Kate Grady SOAS
Dr Róisín Burke University of Canterbury School of Law
Dr Jasmine Westendorf Latrobe University
Professor Hilary Charlesworth Melbourne Law School
Jennifer Wittwer Policy Specialist and Military Liaison Officer, UN Women, New York

The 5th Australian ICL Workshop

Where are we now? Looking forward to the 20th anniversary of the Rome Statute

Melbourne Law School | 4 & 5 September

Dr Rosemary Grey University of Melbourne
Dr Emma Palmer University of New South Wales Professor Sarah Williams University of New South Wales Dr Matt Killingsworth University of Tasmania
Dr Shireen Daft Macquarie University
Natalie Hodgson University of New South Wales
Assistant Professor Philipp Kastner University of Western Australia
Professor Tim McCormack University of Melbourne
Jonathan O’Donohue Amnesty International / University of Melbourne
Dr Monique Cormier University of New England
Simon McKenzie University of Melbourne
Dr Katherine Fallah University of Technology Sydney Souheir Edelbi University of New South Wales Professor Claus Kreß University of Cologne Sephora Sultana Attorney-General’s Department
Associate Professor Treasa Dunworth University of Auckland
Shannon Maree Torrens University of Sydney
Assistant Professor Philipp Kastner University of Western Australia
Dr Melinda Rankin University of Sydney
Dr Michelle Burgis-Kasthala Australian National University
Georgia Hinds International Committee of the Red Cross

Victim Participation in International Criminal Justice

The Case of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Real Power or Empty Rhetoric

Dr Rudina Jasini University of Oxford

Melbourne Law School | 22 February

This presentation critically examined the role, scope and implications of victims’ participation in international criminal proceedings, drawing from developments in human rights doctrine, victimology and transitional justice. The comprehensive analysis of the complex and multifaceted legal mechanism of victim participation is conducted primarily through the lens of the ECCC. The interpretation of victims’ participatory rights has been significantly diffuse and at times divergent, betraying a far from cohesive and consistent approach, and making the study of civil party participation a meaningful and instructive endeavour. Victim participation is still in its infancy in international criminal proceedings, and as such, the trials at the ECCC have appeared more as ‘experimenting laboratories’ than as processes guided by sound and well-crafted rules and procedures. The research argues that whilst the apparent benefits of participation seem self-evident, and may lead, at least in theory, to the realisation of the aspiration of
restorative justice for victims, the manner in which civil party participation has been crafted and interpreted in the trials before the ECCC has raised some important issues and questions regarding its role and impact with respect to the functionality of court proceedings, the rights of the accused, and the rights of victims themselves.

Petulant and Contrary: P5 understandings of ‘threat to the peace’

Tamsin Phillipa Paige UNSW Canberra, Australian Defence Force Academy

14 September | Melbourne Law School

Aside from Article 51 of the UN Charter, a UN Security Council authorisation under Articles 39-42 is the only exception to the prohibition on the use of force provided for in Article 2(4). To authorise military intervention within a given situation, the Security Council must first determine whether or not that situation constitutes a ‘threat to the peace’ under Article 39. The Charter has long been interpreted as placing few bounds around how the Security Council arrives at such determinations. As such commentators have argued that the phrase ‘threat to the peace’ is undefinable in nature and that such decisions are fluid, arbitrary and lacking in consistency. Through a critical discourse analysis of the justificatory discourse of the P5 surrounding individual decisions relating to ‘threat to the peace’ (found in the meeting transcripts), I have determined that each P5 member has a consistent definition and understanding of what constitutes a ‘threat to the peace’. As a result, I argue that a Security Council wide definition, if this was ever possible, would sit in the middle ground of these national understandings.

Melbourne@Defence - Targeting operations and civilian casualties: giving meaning to the principle of proportionality in modern warfare

Dr Michelle Lesh Melbourne Law School
Date: 9 May
Where: Defence Legal, Canberra

The Trump administration has begun to explore options that would dismantle Obama-era constraints intended to minimise civilian deaths from drone attacks and other counterterrorism mission outside ‘active conflict’ zones like Afghanistan and Iraq – in Yemen and Somalia, for example. Reaction to the government’s policy review has expressed concern that it will cause too many civilian casualties. The involvement of Coalition forces further complicates the ability to attribute responsibility for civilian casualties. A growing focus on transparency and accountability indicate that attempts that have been made to address some of those concerns. These are welcome because they express the recognition that secrecy is not the solution to dilemmas about proportionality. However the question remains: why are we so concerned with proportionality during armed conflict? Is it because we suspect that the law as it stands is not adequate to the current realities on the ground?

Concern for civilians during armed conflict is not a new phenomenon: it was the impetus for the creation of the laws of armed conflict in the second half of the 19th century. However, the importance of civilian casualties to our understanding of how the law applies to current realities of armed conflict has changed, largely because the public has become intolerant of such casualties. There is now enormous pressure on States to re-examine the principle of proportionality. Israel has experienced that pressure most acutely because, at least since 2009, the international community and the Israeli human rights community have often expressed indignation over its response to rocket attacks from Gaza. For that reason and because the Israeli Supreme Court handed down a judgment in 2006, now commonly referred to as the Targeted Killing case, Israel provides a case study for thought about the adequacy of international humanitarian law more generally and the principle of proportionality in particular to the contemporary realities of armed conflict.

Michelle Lesh holds a BA/LLB (Hons) from Monash University and a PhD from the University of Melbourne.

Melbourne@Defence - Military Law and Psychology

Dr Inbar Levy Melbourne Law School
Date: 6 March
Where: Defence Legal, Canberra

Dr Levy will speak about the application of military law from a psychological perspective by considering such matters as availability bias, and hindsight bias in military decision-making. Case studies concerning targeting and military investigations will be used to consider the impact of understanding the application of military law using psychology as a framework.

Dr Levy is studying military investigations from a behavioural perspective. More specifically, she is examining whether decision makers involved in military investigations could be influenced by hindsight bias. She is collaborating with Professor Tomer Broude from Hebrew University of Jerusalem. Her research on this topic is covered in part by an APCML grant.

Dr Levy completed her DPhil in Law at University College, Oxford, where she was awarded the Modern Law Review Doctoral Scholarship and the Oxford Faculty of Law Scholarship. Her project, titled 'Behavioural Analysis of Civil Procedure Rules' investigates the implications of findings derived from empirical behavioural psychology for legal reasoning and practice. She had been awarded a Joint Law and Psychology LLB with Magna Cum Laude honours and subsequently an LLM with similar honours from the Hebrew University of Jerusalem. Before going to Oxford,she served as a legal advising officer in the Military Advocate General unit of the Israeli Defense Forces. Inbar held a Visiting Research Fellow position at Columbia Law School in the City of New York and a Visiting Researcher position at Harvard Law School.

Melbourne@Defence - ‘Other’ Foreign Fighters under International Law: Treatment, status and due diligence obligations

Marnie Lloydd Melbourne Law School
Date: 6 September
Where: Defence Legal, Canberra

Marnie’s current doctoral research involves a critical historical reading of legal debates in international law regarding different types of foreign fighters - private individuals who voluntarily travel abroad to fight with an armed group in another country.

The term ‘foreign fighter’ is not defined in international law. The attention to terrorism in current scholarship and practice regarding foreign fighters overshadows the fact that throughout history, civil wars have also been fought by ‘other’ types of foreign fighters or international volunteers. We could think, for example, of foreign volunteers in the Spanish Civil War or, today, volunteers with Kurdish and Christian armed groups in Syria, pro-Russian foreign volunteers in the Donbass, allegations of foreign mercenaries in the Central African Republic, or dual Australian-South Sudanese citizens returning to South Sudan to fight.

Different countries have taken different domestic legislative approaches to such fighters, including through laws on neutrality, foreign enlistment, mercenarism, foreign incursion and anti-terrorism. My interest is on the level of international law – to what extent could it be said that states have a duty under international law to make reasonable efforts to stop would-be foreign fighters and/or prosecute them on their return? All of them, or which ones could be considered the problematic cases? What could such an obligation be based upon? How might a state’s own intervention in support of the same armed group affect this?

By taking a critical historical approach to key legal moments related to the phenomenon of these ‘other' foreign fighters, my thesis considers debates in international law regarding private individuals who voluntarily travel abroad to fight with an armed group in another country. It looks at the fundamental and confronting questions that arise with the private taking up of arms across borders in solidarity with an armed group, and thinks about what looking at this topic might help us to understand about the interplay of international law and friendly relations between sovereign states during civil war.

Marnie Lloydd is a PhD Candidate with the Australian Research Council Laureate Program in International Law’s project on Civil War, Intervention and International Law, under the supervision of Professors Anne Orford and Martti Koskenniemi. She is the recipient of the University of Melbourne's Human Rights Scholarship (2016-2019).

Marnie specialises in the field of international law in armed conflict and humanitarian affairs. Prior to joining Melbourne Law School, she worked for more than ten years as a Delegate and Legal Advisor with the International Committee of the Red Cross (ICRC), undertaking long-term postings in Ethiopia, Sri Lanka, Chad, Afghanistan and the Democratic Republic of Congo. She then worked at the Geneva headquarters where she advised on international humanitarian and human rights law in support of the ICRC's activities in the Middle East, with a focus on conflict classification, the conduct of hostilities and detention in Syria, Iraq, Israel and the occupied territories, and Yemen.

She has taught and spoken on issues of IHL, arms control and humanitarian affairs with diverse audiences around the world, including engagement with armed forces and armed groups in the field. She has also advised NZDF on humanitarian issues in preparation of warfighting exercises in New Zealand (Exercise Southern Katipo 2015), and assisted with military trainings and seminars including the European Security and Defence College’s Course on International Law for Military Legal Advisers (Vienna), with ISAF legal advisors in Afghanistan (Kandahar), and at the UN Military Expert on Mission training jointly run by NZDF/ADF in Auckland. She has also been a guest lecturer at Victoria University of Wellington.

In addition to IHL, Marnie has prior experience in refugee law, minority rights and commercial law, having worked as a legal consultant for UNHCR (Geneva), legal researcher with the European Centre for Minority Issues (Germany) and solicitor at Kensington Swan law firm (NZ). Marnie holds an LLM in International Law in Armed Conflict from the University of Geneva, Switzerland, an MA in International Humanitarian Assistance from Ruhr-University Bochum, Germany, and degrees in Arts and first class honours Law from Victoria University of Wellington, New Zealand.

The Asia-Pacific Centre for Military Law is operated by the University of Melbourne and it is not an agent of, nor affiliated with, or part of, the Australian Government or the Department of Defence.