1. Program on Humanitarian Policy
and Conflict Research (HPCR)
Harvard University
Challenges to the Application of IHL to Afghanistan
November 4, 2011

2. Challenges to the Application of IHL to Afghanistan
November 4, 2011
Live Web Seminar
Mr. Vincent Bernard
Editor-in-Chief
International Review of the Red Cross
Mr. Claude Bruderlein
Director
Program on Humanitarian Policy and Conflict Research at
Harvard University

3. The International Review of the Red Cross
www.icrc.org/eng/review www.journals.cambridge.org/IRC

4. • 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

5. 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

6. Panelists
Markus Cott
ICRC
Matthew Hover
Naval War College
Gabor Rona
Human Rights First
Fiona Terry
Independent Researcher

7. 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.

8. 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?

9. 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

10. 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.

11. 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

12. Does Article 51 allow for NO
Self Defense against an
armed attack by a non-
state actor?
YES
Mapping out the Concept of
“Geography of War” Utilizing
U.S. Action against Al Qaeda Was 9/11 an armed NO
attack by AQ, and did
the U.S. response
create armed conflict?
YES – NIAC Between U.S. and AQ
WHERE?
Originally Afghanistan “Geography of War”
b/c Taliban regime Is it legally required to take place
“unable or unwilling” in a defined geographical area?
Do you accept “unable NO Must apply law
or unwilling” standard enforcement model
for AQ located in other
outside of AFG
States?
YES

13. Self-Defense Status
Individual analysis for Is action against AQ Combatant targetable
each response – U/U, outside of AFG based under LOAC upon State
Imminence, Necessary, on Self Defense or consent or U/U
Proportional status? determination

14. 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.

15. 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?

16. 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.

17. 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.

18. Questions and comments

19. Program on Humanitarian Policy
and Conflict Research (HPCR)
Harvard University
Hosts
Vincent Bernard
Claude Bruderlein
Producer
Elizabeth Holland
Technical Director
James Brockman
Production Team
Dustin Lewis, Christina Blunt &
Anaïde Nahikian

20. Panelists
Markus Cott
ICRC
Matthew Hover
Naval War College
Gabor Rona
Human Rights First
Fiona Terry
Independent Researcher

21. The Live Seminars on Humanitarian Law and Policy are produced by:
Program on Humanitarian Policy and
Conflict Research (HPCR)
Harvard University
Sponsored by:
For more information on the Humanitarian Law and Policy Forum, please visit:
http://ihlforum.ning.com
or
http://twitter.com/hpcr
or contact:
ihlforum@hpcr.org