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Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations

An International Conference

The international laws of armed conflict, known as IHL (international humanitarian law), were developed by the international community in the aftermath of World War II in an attempt to reduce the harm to civilians during periods of armed conflict. However, many (if not most) modern conflict situations in the world – such as those in Gaza, Lebanon, Iraq, Afghanistan, Somalia and Kosovo – no longer conform to the classic models of violence that underlie the application of IHL. In this important international conference the Minerva Center for Human Rights at the Hebrew University of Jerusalem in cooperation with Konrad Adenauer Stiftung, together with the International Committee of the Red Cross (ICRC) Tel Aviv Delegation and with the and the Bruce W. Wayne Chair of International Law, brought together 30 leading experts in an attempt to identify types of conflict situations that are at present inadequately regulated, and to explore the potential for developing IHL or locating new normative sources that may apply. In doing so, the conference sought to encourage the development of international law in ways that are conducive to the attainment of IHL's overriding goals: the mitigation of harm and suffering and the promotion of humanitarian interests, even in times of conflict.The conference was held in Jerusalem on June 1, 2 and 3, 2008.

Judge Theodor Meron from the International Criminal Tribunal for the Former Yugoslavia delivered the Keynote Address on the opening night of the conference. Judge Meron described the failed attempt in the late 1980s and 1990s to formulate at the international level minimum humanitarian rules that would apply to all conflict situations (including low-level conflicts). He believed that the problem is less acute now, given recent developments in the international humanitarian law, international human rights law and international criminal law, and called for a greater focus to be placed on enforcement of existing standards.

The second day's panels were opened with a presentation delivered by Ms. Valentina Falco from the European University Institute. Ms. Falco discussed the potential of EU law to complement international humanitarian law in situations where EU forces were deployed, and criticized the tendency of EU law makers to regulate conflict conduct through non-binding 'soft law' instruments.

Prof. Andreas Paulus of the University of Göttingen then discussed and criticized the application of human rights law by the European Court of Human Rights in cases involving the conflict in Chechnya. Prof. Paulus called for the development of a European body of law, comprised of both international human rights and humanitarian law, that could serve as a counterweight to radical doctrines that view the "war on terror" as operating in a legal vacuum.

The next speaker, Mr. Charles Shamas, Director of the Mattin Group in Ramallah, addressed the legal duty of third states to withhold recognition from illegal situations. He criticized the current tendency of third states to turn a blind eye to violations of international humanitarian law by some states, including violations of jus cogens (peremptory) norms.

The next panel was opened by Prof. David Kretzmer from the Hebrew University and the University of Ulster. Prof. Kretzmer argued that the application of international humanitarian law in non-international armed conflicts detracts from human rights protections and that, as a result, resort to it should be done in exceptional circumstances only. He also called for the renewal of the minimum humanitarian standards project as a way to clarify the human rights standards that would apply to most instances of internal violence.

Prof. Dino Kritsiotis of Nottingham University offered a new typology that distinguishes between international and non-international armed conflicts, yet called for the further identification and development of common rules applicable in all situations. Moreover, Prof. Kritsiotis criticized the tendency in some of the literature to acknowledge the existence of discretion on the part of states as to which legal regime to apply.

Prof. Yuval Shany of the Hebrew University then discussed the legal situation in post-disengagement Gaza. He argued that a good case can be made in favor of the proposition that the occupation of Gaza has terminated, but that Israel should still be responsible for some human rights related matters. Prof. Shany called for the further development of the notion that human rights can apply extra-territorially as well as acknowledging the duties of the occupier to facilitate reasonable conditions of life for the inhabitants of the territory after its withdrawal.

The third panel opened with a presentation by Mr. Anthony Dworkin, the director of the Crimes of War Project. Mr. Dworkin outlined the different approaches to regulating the war on terror – and in particular, the debate on whether international or non-international armed conflicts rules should apply. He then identified the practical implications of the distinctions he offered with relation to targeting of individuals and detention.

The next speaker, Mr. Rotem Giladi from the University of Michigan, argued that the application of rules originating from outside international humanitarian law to situations of belligerent occupation could frustrate the delicate balance that the laws of occupation strike between competing policy interests. While a decision to change the existing balance may be justified in some cases, it should be adopted through a well-informed political process, preferably through a Security Council Resolution.

Mr. Michael Lieberman, from the law offices of Steptoe & Johnson LLP in Washington DC, called for the development of a "pragmatic perspective" on international humanitarian law. Such a pragmatic perspective could evade the need for agreement on the broader principles of the law, and look instead at informal incentives or external sources for motivation to comply with the law.

The last speaker in the third panel, Ms. Daphne Richmond-Barak from Tel Aviv University, discussed the unique challenge of regulating private military companies. According to her, one should eventually treat workers in private military companies as combatants – a conclusion she justified on the basis of moral and historical reasons.

The final panel of the second day began with a presentation by Prof. Françoise Hampson of Essex University who called for elaborating rules on state responsibility governing extra-territorial activities and applying them to conflict situations. Ultimately, she argued, one should be wary of permitting states to operate outside their territories in ways that would be deemed unlawful had they acted within their territory.

Dr. Amichai Cohen from One Academic College then discussed the laws governing the application of economic sanctions and considered whether they can create incentives for states to comply with human rights or humanitarian law principles. Dr. Cohen also argued that in applying economic sanctions states should follow principles of reciprocity (that is, if a specific demand was rejected) and effectiveness.

Finally, Dr. Yael Ronen, also from Ono Academic College, analyzed the regime governing collateral damage – that is, harm to innocent civilians during military operations. Applying law and economics analysis she discussed whether a move to a rigid or flexible absolute liability rule would provide for better outcomes from a humanitarian perspective.

The third day of the conference opened with a presentation by Prof. Emiliano Buis of Buenos Aires University. Prof. Buis discussed the case law of the Inter-American Commission and Court of Human Rights relating to conflict situations. He claimed that a trend exists toward greater use by the aforementioned bodies of international humanitarian law as an interpretive tool for the applicable human rights law.

Mr. Gilad Noam of the Hebrew University then addressed the role of international criminal law, and in particular internationalized criminal courts, in filling gaps left by international humanitarian law instruments. Pointing at the Statutes of the Lebanon, Sierra Leone and Cambodia tribunals, Mr. Noam argued that the resort to national criminal law has been used as a normative gap filler and that this path may be followed in future cases as well.

The third and last speaker on the panel, Dr. Ralph Wilde from University College, London, discussed recent UK cases in which the application of the law of occupation was considered. Dr. Wilde believed that the House of Lords misapplied human rights law to the situation in Iraq (in particular, it expressed hesitation in superimposing European human rights law to non-European countries), and that as a result its approach was too restrictive.

The final panel of speakers on the third day opened with a presentation by Prof. Geoffrey Corn of South Texas Law School. Prof. Corn proposed a distinction between law enforcement and armed conflict modes of operation based on the military rules of engagement. This, he argued, would link legal protections to the degree of force actually employed in the field.

The next speaker, Dr. Knut Dörmann, Head of the Law Division at the International Committee of the Red Cross in Geneva, surveyed the different approaches to the application of international humanitarian law to the "global war on terror", pointing at difficult issues such as the identity of the combatants, the location of the battlefield and the beginning and end dates of the conflict.

The final speaker, Prof. Claus Kress of Koln University, developed a theory in which parallel norms would govern extraterritorial law enforcement operations – the laws of war (international humanitarian law, as applied in international armed conflicts) would primarily govern relations between the two relevant states, whereas human rights law (and the laws of non-international armed conflict, where applicable) would govern relation between the belligerent parties (the foreign state and the non-state actors).

The conference concluded with a summary of the conference themes by Dr. Hilly Moodrick – Even Khen of Sha'arei Mishpat College, and a discussion of some of these issues in relation to the situation in Gaza by Adv. Sari Bashi, Director of the Israeli NGO Gisha, and Col. Pnina Sharvit-Baruh, Head of the International Law Division at the IDF's Military Advocate General's Office.

Speakers and audience members alike were vigorous in their praise of the extraordinarily high level of the presentations and discussion sessions throughout the conference.

Conference papers will be published in a special edition of the Israel Law Review.

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