 Ladies and gentlemen, good evening. If you could just take your seats. We'll have get started. As you can see, the pan is again comfortable as well. It's a bit of a lounge setup, so we'll make this as informal, but as instructive as possible. Welcome to this evening's round table, which is part of our cycles of conferences on generating respect to the law. Today, we'll be looking specifically at the question of translating IHL into military operations. And after this particular session as well, I would recommend you do step it outside. We have a quite beautiful exhibition on these issues as well. I'm going to be fairly short in my introductory remarks, because we have assembled four great panelists to speak about these issues. But first, to set the context, why are we speaking about these issues? What is the purpose of this particular round table? And why have we gathered this experience? First and foremost, I think we can agree that we've come a long way since the adoption of the Geneva Conventions in terms of what context and conflicts look like. We've moved away from your classic battlefield situations to the situations we see today in many parts of the world. The terms that we read about and see every day are such terms as protected armed conflicts, complex environments, warfare fought in urban situations, urban warfare. We see in a huge number of civilian casualties in many contexts. We are seeing a growth in terms of the number of non-state armed groups. We're seeing a variety of coalitions operating. We're seeing proxy warfare, hybrid warfare. And we're seeing international armed conflicts on the way and an increase in terms of non-international armed conflicts. Take a snapshot of the so-called Mosul action which has been prepared. We're looking at an attack in Mosul against supposedly between 3,000 and 4,000 Daesh fighters. We're looking at, on the other side, 25,000 Iraqi soldiers supported by a number of militaries, mentored by a number of militaries as well, with, of course, air support and air campaigns. And we're looking at an urban environment with approximately 500,000 or 600,000 people who've been, in some ways, held by Daesh for a couple of years. And amongst that civilian population, we're also seeing a number of individuals who potentially could be supportive of the ideology and ideas that Daesh are pushing. That is a contemporary snapshot of the kind of situations we're seeing, the battlefields that most soldiers have to operate in today. So the questions we need to ask ourselves is how can we get the state armed forces, regular armed forces, to operate in these environments, to operate in an efficient manner, whilst at the same time fully respecting international humanitarian law? If we recall, the Geneva Conventions are quite clear. The states have to respect international humanitarian law. The responsibility for integrating, teaching, disseminating international humanitarian law, or for those of you amongst the military, the laws of armed conflict, is with states. The responsibility lies with the commanders in particular to instruct their subordinates in terms of how to operate. In developing the right legal frameworks, and we'll speak about rules of engagement, for instance, and SOPs, to ensure that the law is properly applied in the midst of hostilities. But then it begs the question, such concepts such as direct participation in hostilities, continuous combat function, asymmetric warfare, those concepts don't necessarily have much detail in the Geneva Conventions. And so the added challenge today for most military operators is actually to translate IHL into operational realities with clear instructions based on terms which are not necessarily being agreed upon. I'm hoping our four panelists this evening will create a bit of a debate amongst themselves. And I'm hoping that all of you, and I know it's fairly late midweek, will generate some provocative questions because they have flown from quite far and they will present shortly their ideas and approaches to different aspects of the questions that we have sort of addressed a few seconds ago. The format will be quite simple. We'll have 10, 12 minutes for each presenter who will be fairly relaxed. I don't think we have any PowerPoint, or do we? So no PowerPoints, so you have been spared PowerPoints. And after the four presentations, we'll generate some questions, either directly from the panelists or from you on the floor. I will not spend a huge amount of time on their bios. You can read them. They're in these leaflets they have before you. But we'll be presenting from our right first with Richard Jackson, who's formerly with the US Army, having served for 44 years. Lastly, a special assistant to the judge and advocate general of the Army for Law of War Matters. Only recently retired in July, so his information that he's gonna share with you today is up to date. And key in developing the Law of War manual as well with the US. After Richard, I'll ask Mr. Andrew Carswell to take the floor. He presently serves as senior ICRC delegate in Canada, a previously worked with the ICRC in many delegations around the world and also has a number of years with the Canadian Armed Forces. To my left, I'll be Ms. Lone. And I apologize if I misspell it and missay it. I'm Kellgaard from NATO, who is a senior assistant legal advisor, officer of legal affairs with NATO and has been with NATO since 2010. And last but not least, the end of our long couch, Charles Garry, formerly with the UK Armed Forces, having served for 30 years as a legal officer in the United Kingdom Army legal services and presently a member of the International Humanity and Fact-Finding Commission. So I think you'll agree with me that we have a quite impressive number of years of experience at this table and quite a substantive experience to be presented this evening. So without further ado, I'll give the floor to you, Richard, and I'll be quite firm if after 30 minutes, you're only halfway through to cut you off. Thank you. That's great. Thanks, Jamie. And thanks to the ICRC for inviting me here today. It's great to get back into Geneva where I've made a lot of friends over the years. I started here in 2005 sitting across the street on the CCW delegation for the US. And what a beautiful day it's been today and yesterday to be in Geneva. I usually start by making a disclaimer that anything I say doesn't represent the views of the US government. Well, now that I'm retired, I can say that and really mean it. What you'll hear today is Dick Jackson's view. It's sometimes at odds with the current US government view. But Jamie asked me to start with talking a little bit about asymmetric warfare. One of the, I got my job in 2005 because I wrote an article for the Army lawyer called Stick to the High Ground. And what it was about was asymmetric tactics being employed in Afghanistan and Iraq and the US government's response to those asymmetric tactics. What are asymmetric tactics? They're the tactics of the week. If a organized armed group or even a military organization can't meet the modern military on the same ground and defeat them on the same ground, then they turn to tactics which sometimes exploit violations of the law in order to improve their position. But asymmetric tactics aren't new. They probably go back centuries, but the best example I can give you from the not too recent past is in the Civil War era where Francis Lieber, who the US considers the father of international humanitarian law or law of armed conflict, his first job wasn't writing his code for the services for the armed services in the US. His first job was to look at guerrilla tactics being used in principally the West. If you might remember, if you've studied in US history about bloody Kansas and John Brown's raids on the side of the anti-slavery forces and Quantrill's raids back into Kansas burning the town of Lawrence, Kansas, down, those types of guerrilla tactics were employed and really made the precursor to the Civil War a very bloody affair and they weren't following any rules. They were not representing themselves as military, they were hiding their identity and they were raping, pillaging and plundering. So Lieber did a study of this and recommended to the both militaries, the South and the North in the Civil War, how to stay in compliant with the law of war but to represent themselves as members of militias that are associated with the military and compliant with the law of war. So asymmetric tactics have been around for a while and they also have really confronted us since 9-11. What's more asymmetric than taking a commercial aircraft using it as a bomb and blowing up two buildings and killing 3,000 people. Saddam Hussein in 2003 remembered 1991 in the Gulf War and decided he couldn't beat the U.S. and coalition military in a straight up fight so he established the Saddam Fedayeen who used guerrilla tactics, didn't distinguish themselves from the civilian populace, melded into the civilian populace and attacked coalition forces. So we've had to deal with asymmetric warfare as militaries for a number of years but in the last 15 years we've seen different responses to that. The first is the response that I was trying to push in 2005, it's stick to the high ground. But what that means is there's asymmetry in the law. So you have people using asymmetric tactics violating the law of war wholesale but if you stick to the high ground on the military side then you follow the rules. That approach provides the most legitimacy for your actions and allows you to maintain the legitimacy with your own forces at home and with the forces, with the civilians in the state where you're operating. So certainly in counterinsurgency tactics fighting from the high ground, complying with the law of war is a great benefit to the military in establishing their legitimacy. But the other approach has been one of responding to asymmetry with asymmetry, violations of the law. And that's something that my nation did in adopting torture and in lowering the standards of treatment for those that were detained early on in the war. And it's much to our chagrin, much to our shame that we did that. But since 2005 really with the Hamdan opinion it's been an uphill slope in restoring the law of armed conflict to its rightful place. I think this forum, Law and Policy Forum is well named. I would add Law, Policy and Practice Forum because the real challenge is to translate the law into practice. And quite frequently we do that through policy. So what I wanna transition to next is talking a little bit about the most recently published DOD law of war manual. And give you some examples where I think the manual failed to translate law into practice. I was one of those who worked on a prior version of that manual with Hayes Parts, a world renowned expert in this area of the law. And our focus in that earlier version was to define what the current US practice is rather than to define the law. Well why is that? It's because of customary international law. States are very reluctant to adopt customary international law. What does it require? It requires a consistent practice of states paired with Opinio-Uris, which is a statement by the state that it's complying with the law out of a sense of legal obligation. And you've seen, you saw in 2006 in the US response to the customary international law study by the ICRC, a response that says, well, we have an issue to Opinio-Uris on many of these issues, on many of these rules, many of which are derived from additional protocol one, which the US hasn't signed or ratified. And so the adoption of practices which are adopted out of a sense of legal obligation is a definition of customary international law that states stick to very closely. And it's a very conservative action by states to not adopt customary international law because a state like ours is a positive estate. It complies with the treaties it's signed up to, but doesn't develop, particularly in the international law, doesn't work with the development of standards, international law standards that are outside of that treaty regime. So what do you find if you look at the DOD law, War Manual? You see the US frozen in time between 1977 and 1986 because during that time we got together with many of our allies, we looked at what our view was of additional protocol one, we spotted some problems with it, particularly the adoption of anti-colonial entities we're called terrorists at that time as full-fledged members of the international community, it gave some legitimacy to organized armed groups or insurgent groups. But it also threatened civilians on the battlefield because in article 42 and 43 of additional protocol one it adopted standards that lessened the requirement of combatants on the battlefield to identify themselves and distinguish themselves from civilians on the battlefield. So that's what the DOD law, War Manual, represents. It represents our view, the US view of additional protocol one circa 1986 when Mike Matheson, a State Department official gave a cleared speech at American University about what the US accepted as a customary international law in additional protocol one. And there have been a few controversies recently about those provisions. And I think it can be clarified if we understand that the statement in the DOD law, War Manual, is what the US believes is the law, not necessarily what their practice is on the battlefield. And I'll give you some examples of that. First one is the human shields provision, the human shields provision. No, let me start with the presumption of civilian status. In section 5.5.3.2, it comments on article 51 and 52.3 of additional protocol one. And it says that it's not customary international law, first of all. And there have been a number of scholars over the years who have said that it's not customary international law, the presumption of civilian status. And it also concentrates on this issue of doubt. It actually quotes the UK manual that talks where it talks about substantial doubt being the standard in order to clarify the civilian status. But what's the practice? The practice is not this legal standard like beyond a reasonable doubt presumption. What it is is the presumption is on the battlefield, our soldiers say, if that's a civilian object, we presume it to be a civilian object until we're given information that changes that view. And you can see that in our tactical directives, you can see it in our doctrine and our military manuals that the presumption of civilian status is the practice but it's not the law according to the DOD law of war manual. Second, human shields. We have a strange way of characterizing civilian human shields in saying that if we were required to count human shields in the calculus of proportionality, then it would encourage people to use human shields. So the essence of that is that the DOD manual says that the risk for employing human shields and the responsibility goes to the people that are employing human shields. But what's the practice? If you look at our military manuals, you'll see that human shields are counted in the proportionality analysis in our doctrine. And finally, direct participation and hostilities criteria are very different in the DOD law of war manual. It's on page 224 of the DOD manual. And what it says is it essentially adopts the military objective standard for determining whether or not a civilian is directly participating in hostilities, whether or not they provide an effective and substantial contribution to the military operations of an enemy. We've rejected the ICRC's approach that in organized armed groups, those, you're only a target if you're carrying a rifle, if you've got a continuous combat function. Instead, we believe that everybody who's a member of that organized armed group, either formally or functionally, is a target in armed conflict. And there's no other way to fight in the asymmetric warfare of today. But with respect to civilians directly participating in hostilities, what we've done is adopt the standard I described, but added to that a reliance on rules of engagement to define who is targetable in armed conflict. And so quite frequently what the US government does is employ DPH concepts or functional membership concepts to for deliberate targeting, but for time sensitive targeting, targeting that involves a confrontation between a soldier on the battlefield and a civilian that those are governed by self-defense rules under the rules of engagement, not by this concept of DPH. And I'll turn it over to my colleague. Thank you very much. Dick, fantastic. We'll save the round of applause for the end of the four panelists, but just a couple of points there, which I think are worth mentioning there. With regard to the respect of the law, the high ground component, I think is something that comes up on a fairly regular basis, that to be seen to be respected in IHL reinforces in some ways the legitimacy of that particular force. I found it interesting that you refer to your DOD law of war manual. For those of you who haven't read it, it's big, okay? And it's taken many years to put together in numerous sections of interest, but the fact that it's a law of war manual which is frozen in time, and that rather than looking at the law, one has to look at the practice of the troops on the ground in terms of seeing how IHL is being applied in various situations. And the controversies, I think, hopefully we'll have time to speak about DPH. And this, of course, is a question not between so much the armed forces in the ICRC, but potentially between various armed forces operating together who might have a different interpretation as to what is DPH, and how do they then determine who is a legitimate target, or not in a various context? Without further ado, Andrew, the floor's yours. Thank you very much, Jamie. Good evening, everybody. And first of all, thank you very much for the invitation to be here tonight. And it's really an honor to be amongst such distinguished panelists. It's a pleasure to see you again, Dick. We've had many opportunities to have these discussions in Washington and elsewhere in the U.S. in my previous posting there. I used to be until last year in armed forces delegates, which means the last decade I was working with armed forces to try to integrate the law of armed conflict into their operational practice. And after 10 years, I can say it's an extremely challenging job with difficult to measure results. And it's sometimes a frustrating occupation. And yet it seems to be the major issue in the compliance with the law today, not so much the development of the law, but the fact that the laws that currently exist, which is very good on paper, is not that great on practice in many cases. And the way in which ICRC approaches these things really began in the modern era with the production of the Roots of Behavior and War Study in 2004. That wasn't a legal study, but rather a psychological study. It's being updated today, in fact, by Brian McQuinn and overseen by Jamie. But the previous study gave us a lot of food for thought in very brief terms, what we took away from it at the unit that I was working in was that soldiers are not autonomous beings in the traditional sense of the word. That soldiers are a function of the orders they receive. That the psychological profile of a soldier is that they're conformist. They conform with each other individually. There's a sort of a dilution of responsibility that happens horizontally amongst members of a unit. It also looked at vertical dilution of responsibility, which goes between a subordinate and a commander. And you combine these two when you have something that the authors referred to as a moral disengagement to a certain degree. They're not going to an extreme with this, but I think it was a good thesis upon which to build the discussion. And from that point onward, ICRC started to readdress the way in which we'd work with arms carriers. It started to move towards an approach that was about integration of the law. We now use that word very commonly, it wasn't around until 2004, 2005. And what ICRC meant by the terminology was integrating the law into operational practice via the instruments of military chain of command. In other words, if the soldier is not autonomous in the traditional sense, then where does his action come from? Well, it comes from his orders. His orders are a function of his rules of engagement, which are a function in other instruments as well as SOPs, the operations order, but all that is derived much further up the chain. It starts really with strategic policy coming from the minister and from the chief of defense staff and working its way down into doctrine of policy. These things in turn affect the way in which you train on the field, but also in the way in which you educate in the classroom. And then of course, the most important part, the most proximate instruments in terms of the way in which soldiers work are going to be at the operations level. And then following that, of course, extremely important to have a successful disciplinary system and a justice system. Put all together, these things are actually capable of changing the way in which soldiers do business. Now, we were talking about, or Dick was talking about, achesometric warfare. So I'm not gonna get into that detail because that really is a whole conversation in and of itself. Certainly, one tactical example of achesometric warfare for these days is that was discussed recently at the proportionality expert meeting that they had in Quebec City a couple of months ago was the issue of a unit that comes under ambush and it's firing back against that ambush. It's in a populated area. And then what are the precautions that need to be taken in that reply? So we know what we have to distinguish. We know it has to be proportionate and we know we have to take certain precautions but what is feasible in those circumstances, that was a hot point of discussion and hasn't been fully resolved. But at a strategic level, the issue of asymmetry I think was demonstrated by the US in 77 when it decided not to, and beyond when it decided not to ratify or exceed to additional protocol one. And part of the rationality was that there was a watering down of the standard of combatant in the sense that if you were a member of state armed forces or you're a member of a militia belonging to the state and you were carrying your arms openly during deployment and execution of an attack, that was gonna be sufficient in terms of additional protocol one to warrant combatant status. And from what I gather, the US didn't agree with that standard and this takes us back to now the terminology we use, Charlie Dunlap brought up the term of lawfare, this notion that you already described of using protection of IHL in order to make a military gain. However perfidious that might be. But another less discussed and maybe not discussed at all term might be the issue of asymmetric loitering which is the notion that the law as it's written today is a product mostly of Western militaries who are at the table. There are others who are there too but the discourse is dominated by those who tend to be pulling the trigger, those who are in the cockpit rather than those who are at the receiving end. And as an adjunct to that phenomenon there was a discernible leaning towards military necessity which ICRC over the years has in some cases objected to. And it's quite understandable at the heart of it. In fact, it's incumbent upon us to understand that armed forces are looking at these issues. And again, I don't want to speak for the armed forces at this table and you can correct me if I'm wrong. But you're looking at from the perspective of protecting the young women and men that you're putting into Herm's way. And ICRC also has a great deal 150 years of operational experience but through the lens generally of the beneficiary of that law. So we're looking at it from the protection perspective and necessarily those two come into interaction with each other, those two perspectives of military necessity versus humanity if you want to really simplify the terminology. And necessarily we have to come to compromises. And that permeates the entire body of the law of course. What becomes concerning from my perspective is when we see a more malleable approach by Western forces when it comes to the definition of a civilian as compared to the ICRC's opinion on that. So if we look at the debate on DPH, Direct Participation on Stilets Rather and Continuous Combat function, we see an inclusive notion of who is a member of a non-state armed group. We see a relatively, but the flip side that the category of civilians is inner inclusive. And so where it becomes politically viable for states to say that they're avoiding civilian casualties or that they even have a zero civilian casualty policy, the question that we have to ask underneath that and it's gonna vary depending on who you're talking to is how do you define civilian? And also what happens, I mean this notion of the presumption of civilian protection I think it's the basis upon which we're operating at ICRC but it's a completely different way of saying it if we don't have that presumption. And in fact it would tend to undermine much of the logic that we're referring to. So when it comes to those who play an indirect role in hostilities in the battlefield from your propagandists to those who billet soldiers to people who sell weapons, people who by ICRC standards don't meet the direct causation notion of direct participation hostilities and certainly don't either have a continuous combat function, the question is whether those individuals are liable to lethal force in the first resort and obviously you know the answer from our perspective but I think a lot of the argument over DPH and it got quite emotional at a certain point was based on a couple of foundations which weren't necessarily all that sound. There's a whole myth and mythology which built up around for example the so-called revolving door of direct participation. This was the notion often expressed and that we heard for many years after the publication of the study that somehow a farmer by day and fighter by night could only be according to ICRC view attacked at such times that individuals engaged in their nocturnal activities which is absolutely not what it was saying. Rather, a farmer who takes on a continuous combat function because he directly participates on a recurring basis on behalf of a party to the conflict could be considered a continuous combat function. That individual could actually be targeted any time. 24-7 subject of course to a requirement of military necessity which came from a very controversial recommendation number nine in there but we can go down that road too. It's quite time consuming at this point. But there's also the mythology of the indirect participant hostilities. The IED maker for example, the idea that somehow you had to leave this individual unscathed on the battlefield even though that person is selling objects which are going to be used as munitions against and kill your troops on the following day that somehow you have to leave these people untouched but the essential question was whether lethal force could be used in the first resort. That was the question. And the IED maker is making something that's defined under Article 52 as a military objective of additional protocol one or the customary definition of a military objective. And the question is when this individual walks home at night, is he the equivalent of somebody who walks home from the factory in Flint, Michigan making munitions? I think once you put it in those terms and flip the tables it seems to make sense that this individual is a civilian but he's a civilian who's made a choice to accompany the armed forces. And in fact, the DPH study made some compensation for this notion that those who accompany the armed forces as a matter of practice are going to make themselves more likely to become legitimate incidental damage and an attack frankly. But if you have a zero casualty policy, a zero safe cash policy, then that individual suddenly takes on a whole different aura. Because now you've decided, if you go down the line that this individual is a civilian, that means you have to be absolutely certain that he's nowhere, that you're indeed meeting the proportionality equation in every single time. Whereas you could in fact go after the military objectives if you were entitled to do, pardon me, if you decided that that was going to be tactically the correct thing to do. So seven years after the study we find that the legal discussions are quite well covered. The positions are quite well entrenched on DPH and so on. What's not been covered adequately is the cultural difference between armed forces and civil society who have an interest in the way in which armed forces do their business. And in armed forces they talk about things like hostile intent, hostile act. They talk about status base and conduct based targets. In ICRC corridors in civil society we talk about additional protocol one. We talk about customary international law. We talk about the dividing line between law enforcement and conduct of hostilities. How do these two things come together? It's not all that obvious. When we talk about hostile act and hostile intent here we are talking about a definition of how the armed forces perceive self-defense, individual self-defense. So that is subject of course to international human rights law. And we would say that you look to the basic principles in the use of force of firearms and the use of force in that situation is what's necessary in the circumstances and proportionate to the threat. So very, very different from the sort of analysis you go through in IHL where of course you can use lethal force in the first resort. In international human rights law you can only use lethal force in the last resort where no other realistic opportunities are available. So the key for the civil society is to take a look and parse apart those different pieces of a hostile intent and hostile act and to look at the human rights law standards that are applicable and all the complications that go with it. For example, for the states that don't agree with the extraterritorial application of human rights law, where do they derive the standards from there? And we've heard for example that you look to general principles of international law. But those are going to be relatively subjective compared to a legal standard that is contained black and white. When we talk about status-based targeting, really here we're talking about the question of membership. We're talking about continuous combat function. And if we go with this notion that you can have more or less a basket of factors from which a commander can choose, where a commander can simply say, okay, we've got proximity to the hostilities, we've got somebody who looks like and in the wrong place at the wrong time, you put that together with a couple extra factors and now you come to the conclusion that that individual therefore is a member of the non-standard group and therefore targetable. I don't think that does justice to the equation. The continuous combat function test is from a rule of law perspective fairly straightforward. It says that you can demonstrate your membership, yeah, pardon me, you can demonstrate your membership overtly by wearing a uniform, by carrying your weapons openly and so on, or it can be deduced from direct participation hostilities on a continuous basis on behalf of the party. So there we actually have something that you can get your claws into and that is a strict legal test as opposed to a series of menu items from which ultimately the discretion of the commander prevails. So I'll leave it that and then sorry to have gone in the middle of our time. See, perfect, thank you very much. So interesting, Andrew opened up a can of worms. I was looking over my shoulder then, Dick was writing furiously some notes on DPH but will allow you to respond no doubt at a later time. A couple of issues that I think Andrew mentioned there, the question of moral disengagement as well as the findings from the Roots of Behavior study from the mid 1990s. The question I would have there at some point would be what does that mean in terms of training? If we're looking at sort of the morality of action rather than the legality of action, if we're looking at practice maybe we need to modify our training practices. The concept of asymmetric lawyering, it's the first time I've heard that but I think it's a term that could actually dominate for the years to come. And the question of who pulls the trigger and there being the ones who drive these issues. And I think the last area there when you're looking at the question of sort of DPH is a definition of direct participation in hostilities. What I found interesting yet troubling at the same time, interesting that we have this legal discussion and this legal debate which has been going on for best part of a decade if not more but troubling that we're still having this legal debate when these are the issues that have to be dealt with on the battlefield. So it'll be interesting to hear from all of you later on maybe how do we actually effectively translate controversies in the law, especially on DPH into operational realities so that the soldier on the ground understands I can take this person out and not that person. Moving on to this side of the house now, sorry I've been sort of putting my back and turning my back on you. I'm gonna give you the floor, Lone and then to Charles Afterway to speak a little bit more about framing the issues and then afterwards a question of sanctions. How do you make sure the legal frameworks are properly understood and driven to the sort of the ground level and then the question of sanctions. If we see these violations, how do we deal with them ultimately? Only the floor's yours. Thank you very much Jamie and thank you very much for inviting me. I must say I am both very honored and humbled to be in a company like this with both friends and new friends which is always nice. And unlike Dick, I do still work for NATO as an international organization and except for when I am directly quoting NATO policies, the views that I'm presenting today are my own or my interpretation of what goes on in NATO headquarters and not official NATO policy. I will start out by saying that in any NATO political mandate there is a line that says, and here I am quoting, all NATO operations will be conductant in accordance with international law. Full stop. Now what does that mean? That's a very good question. And of course that all comes down to how our 28 soon to be 29 member states interpret international law, what they find binding upon themselves and what they do not find binding upon themselves. And the latter is typically what causes the more political interesting debates in NATO headquarters at the Abbasiduria level. I'd like to touch a little bit more upon rules of engagement. And the question that we've been asked quite frequently in our office, the Office of Legal Affairs where we advise NATO Secretary General on legal aspects of NATO's business, one of NATO's businesses being in particular military operations, is rules of engagement guidance or is it law? Well, we hold no opinion on that because if we had to have an opinion on that, it would have to be agreed at 28. So we leave it up to the individual nations to decide that. But what rules of engagement are in a NATO context is political constraints on the otherwise lawful use of force. Why do we have them? We have them to secure, to attempt to secure some sort of unity of effort when you take troops from 28 different nations, 28 different military traditions and 28 different interpretations of law and want them to achieve one mission. How do we go about and get them? And how do we get the political buy-in to rules of engagement? Rules of engagement is an operational tool, even though I just said they're political constraints on the otherwise lawful use of force. Absolutely. But there's a tool that the operational commander uses to accomplish his mission. It is he that knows or has the best way to know how much force he needs to use to accomplish his mission that's been given to him by his political masters. But the lawyers are always there. When I describe it as a metaphor, I said you have the operator in the front seat, then you have all his other subject matter experts in the back seat. But on that right-hand seat in my part of the world, you have the lawyer and the lawyer is the one that says look to the right, look to the left, there's something coming you need to be aware of. And the lawyer also, like the driving instructor, has that extra break to be able to say, no, you're now overstepping your boundaries, you're outside the law. Rules of engagement in NATO are drafted by what we call the theater commander. That is the commanding officer that's going to be on the ground, that's going to be responsible for putting young men and women into harm's way. He drafts the rules of engagement based on the mission he's been given. It then goes up through the military chain of command and it gets what we call military advice, which means senior level military officers assess the feasibility and the likeliness of this being the right level of force. It then comes to the political level in NATO headquarters in Brussels, where it's discussed in what we call the operations policy committee to add a political chapeau to the military advice and recommendation for the level of force to be used. That then goes back to capitals. So each and every nation, each and every of the 28 member states in their own parliaments sign up to this level of use of force. So it's approved at government level. At the same time, we also make it very clear to nation that no nation can be committed to do anything that is not in accordance with their own domestic legislation. And that goes without saying. Therefore, we quite often see national caveats coming back with the governments having approved the rules of engagement. A national caveat can for instance be that a nation's troops will not conduct mind clearance unless they're under the command and control of that particular nation. We call that an operational caveat. There can also be political caveats such as a nation will not have its troops participate in certain types of combat because it's against either, it's against their constitution, or they do not consider their troops trained to a sufficient level to carry out that kind of activities. It then comes from the capitals back to NATO headquarters in Brussels where the ambassadors authorize them. It then goes to the senior or strategic commander, Sakur that sits in Mons. He can withhold some of this to ensure prudent political and military control with the level of force. But it then tinkers down the chain of command to the soldier on the ground. And we always encourage, and it's also in our operational plans, every nation to issue what we call a soldier's card. It's up to the nations if they wish to do so, but that soldier's card should spill out exactly what both Digg and Andrew said, what can you do, short, clear, concise under what circumstances. And I think you will know what I have to say about NATO's view on direct participation in hostility. We don't have a consolidated view on direct participation in hostility due to the simple fact that the 28 nations have not had, and here I am using my own words, the courage to take this discussion up. They have definitely talked about protection of civilians. They have definitely talked about the necessity to do more. And they are very aware of the fact that 26 of our member states have signed and ratified, not only the Geneva Conventions, but also the two additional protocols, but two have not. And therein lies part of the problem and part of the discussions that we're having in headquarters. However, coming back to rules of engagement and touching directly upon what Andrew said, we do use the terms hostile act and hostile intent. We also make very clear that in a NATO context, rules of engagement do not touch upon self-defense at all. That's a national responsibility to be interpreted under national law. Does that cause troubles or difficulties when you're on the ground and you don't know whether you're operating inside your rules of engagement that authorizes you to use force if you come across a hostile intent or whether or not you're going to go with your national understanding of self-defense? Of course it does. And it is one of the conundrums that we would love to solve and we're working towards it, but we're not quite there yet. And I will say that we are guilty as charged when it comes to defining hostile intent as a threat based on capability and evidence and indeed hostile act as committing or directly contributing to. So we choose different words, but I think Andrew touched very much upon the evaluation that we go through when we talk about this. It becomes even more difficult when we start talking about an SM ethics threat. NATO's been very aware of it and has put a great deal of common funding and common efforts into looking at how we can as an organization and for our let missions and operations minimize the impact this has on particular civilians because we do realize that an SM ethics that like it was mentioned before often happens in the urban area. What we also see is there is an SM ethics threat in cyber and it is something we struggle to come to term with particular as if you would have read both the Wales and the Warsaw Summit declarations. NATO takes a defensive posture when it comes to cyber, but it is no secret that a gifted 16 year old in his mother's basement can take down infrastructure of most of our member states. And we have very little that we can do at the moment. But yet both when we talk about more, if I can say the words, conventional asymmetric warfare and cyber asymmetric warfare, we put our efforts into finding the source of the danger earlier, so detecting. We have a number of centers of excellency that are like-minded nations that have come together and pull their resources and their knowledge to try and develop tools to detect an asymmetric threat earlier so that we can use force earlier to take it out or use lesser force to take it out. The second focus we also have is focus on the means to minimize this threat that we aim at using special and trained forces, special forces in particular to take out these threats because we do believe that that will cause lesser damage than if we use more conventional traditional military forces. We take this into consideration in our operational planning and we try hard to describe all the aspects of it. But again, coming back to everything we do has to be agreed at 28, so it is very different and it is sometimes very difficult because some of our nations are very forward-leaning in the cyber area. Some of our nations are very forward-leaning in the counter-terrorism area, which is where you will find all the efforts against asymmetric warfare within NATO. It sits in our counter-terrorism section. That, of course, poses another difficult question for NATO. Is counter-terrorism a police task or is it a military task? Some of our member states have both military and civilian components that deals with this, others see it strictly as a police task, which is probably also why, when you read our cyber concept and our counter-terrorism concepts, you'll find that perhaps they are a little bit lacking on the action verbs, but that doesn't mean that we do not take it quite serious and do try to accommodate what is going on. One of the things that we're struggling with is, for instance, how can we contribute to or at least not contradict evidence collection and attribution in cyberspace? It is one of the challenges we have right now. But I'd like to talk a little bit more about what we actually do as an organisation of 28 like-minded nations that agree everything by consensus to protect civilians in an armed conflict situation. And I use the word armed conflict situation quite deliberately because NATO do not classify conflicts. We leave that to the true experts. We will react either on a UN mandate, an invitation from a state or in collective self-defence. Those are our legal mandates for us to intervene in a situation. What we do have and what we have developed and for NATO it has been quite a rapid development is we do have a policy on protection of civilians. We do have a policy of protection of children in armed conflict and we do have so-called military guidelines to prevent sexual and gender-based violence. What is unique about these policies is that we have not done it alone. I know in today's day and age that sounds like you're stating the obvious, but for NATO it has been quite an eye-opener to invite civil society, the UN, and the ICRC to come and work with us, to sit with us in our committee rooms to participate as equal partners in our discussions on these topics. And I'd be honest to say we learned a lot and I think that our closest cooperation partners also learned a lot about the way that we do business and what it is that we set out to achieve as an international organisation. One of the things that we've learned is that even when you have the most dire of situations, for instance, a significant number of civilian casualties in Afghanistan or when you have a tragic incident as the bombing of the hospital in Kunduz, there is always a silver lining. We work very, very closely in my office and in our operations divisions in NATO headquarters with our ICRC colleagues in Brussels looking at the report that the ICRC issued about lessons learned from Afghanistan and some of that does pertain to exactly the things we're talking about here, rules of engagement, protection of civilians, protection of the vulnerable women and children. With regards to Kunduz, we may not have read the law in my office the exact same way as Medicine Saint-Francais read the law, but what we did read the same way was the necessity to find out what happened. And we have put in place a stricter regime for monitoring and reporting so that we can have a better chance of understanding what goes on and so that we can have a better chance of maybe not as an organisation because it's important to note we don't own the data. The data is owned by nations, but to facilitate and to encourage our member states to participate more actively in any investigation that might be ongoing, be it a national or an international-led investigation. I'm sorry. What we do have now with Medicine Saint-Francais is a very, very open and ongoing dialogue on how we can prevent this from happening in the future. So we've actually engaged in a very creative dialogue where we do try at staff officer's level to sort some of these problems, to truly understand where they're coming from and to make them understand where we are coming from and seeing how the current policies that we have, especially the protection of civilian policy, how that can be implemented in a manner that should lessen the risk of something like this happening again. When we are going to review our policy, both our military guidelines on preventing sexual and gender-based violence and our policy on protection and civilian, we have invited civil society again. When it comes to women, peace and security, women being another vulnerable group when we talk about armed conflict situations. We have, where the Secretary-General has a special representative who will have the very first meeting of her civil society advisory panel where academia, international organizations, non-governmental organizations are brought together to offer a broader view on those particular topics to be taken into consideration by the organization. Thank you. Thank you very much. And I think a wonderful connection to sort of the legal issues that you raised to then start speaking about the frames and the framework so we can utilize to ensure that it encapsulates what the limitations are with regard to international humanitarian law. The questions of the rules of engagement was quite interesting. And I found also interesting the fact that you still had disagreement on certain key issues. So the drafting process of these rules of engagement must be quite something and quite convoluted. The role of the lawyers, I think again, has come up in this part of the discussion. This begs the question that of course, and it goes back to your sort of asymmetric lawyering component, there are a number of armed forces out there that just don't have lawyers. If you look at the US, there are thousands. If you look at some parts of the world, you might be lucky to have one or two lawyers. So question maybe for later on is how then do you translate the law without the lawyers? Maybe they do a better job without lawyers. I'm not too sure. The question of the soldier's card, vice versa, something which is transferable and makes sense. And then of course, the lessons learned cycles and the policies and guidelines involving groups, organizations other than the armed forces implicated to actually be a sounding board and provide expert advice. So thank you for those. Last but not least, and Charles, thank you very much for being so patient. And the smile is still there. So the floor is yours now with regard to a presumed compliance issues, in fact, finding and the likes. Thank you. Thank you very much, Jamie, and thank you to the ICRC for the invitation. I think I'm suffering from a sort of legal form of post-traumatic stress disorder, having listened to the panel because I was involved from 1977 with Hayes Parks and others in the gestation of military manuals. We thought our British one had a gestation period of an elephant and it came out in 2004. I feel for the US. I then listened to the DPH debate, having sat for five years on the panel of experts that brought back some horrific memories. Then finally, on rules of engagement, I found myself remembering back to my days as assistant legal advisor at Supreme Headquarters Allied Powers Europe where I was trying to put these rules of engagement and draw them up. So I apologize if I seem to be stressed. But Kunduz brings me perfectly to my subject because it's often been said that truth is the first casualty in war. The laws of war is as much subject to this as anything else. We all know about propaganda and demonization of the enemy. Fact-finding is therefore vital. However, there are many different forms of fact-finding and one of the problems we have today is that they all tend to be conflated. This is not a good move. The first difference I would suggest is between truth-finding and accountability. They are two very different animals. I would give an example, the inquiry into the fate of Flight MH-17 over the Ukraine. This was split into three parts. The first part was a standard air accident investigation branch report to work out what had happened. The aircraft had been brought down. It had been brought down by an external factor striking the aircraft. Great. Second inquiry, which is just reported, goes into what happened, responsibility. And I deliberately use the term responsibility. That is when we heard the reports of the missile from the areas supposedly under separatist control being fired. And that's and all the story about the missile. It's past, it's present, and it's future. Only then does the issue of accountability come in. The third stage, who is responsible as individuals? The correct order I would suggest is precisely that. International humanitarian law is essentially civil in nature. It deals with state responsibility. The criminal end of it, accountability, is the pointy end of the spear. The danger in militaries today is of reversing the order. Post-incident investigations, certainly in the UK, are increasingly being told to look into accountability, not what went wrong. And the UK is in a mess, frankly, at the moment for just this reason. I don't work for the government any longer. I can say what I like. And this is precisely why a little forgotten fact, evidence given before service inquiries cannot be used as evidence in subsequent criminal proceedings. They are separate issues. What went wrong and accountability. It doesn't mean you can't use that evidence to find further evidence. We don't have the fruit of the poison tree doctrine, but you cannot use that evidence. It's to encourage people to tell the truth. So the first question I would suggest is what is the purpose of the inquiry? The second question is what law applies? Increasingly, investigations into violations of international humanitarian law are being conducted by human rights bodies. But there are fundamental differences in philosophy. Human rights law starts with the result. Essentially, a breach of the right, if it is found, puts the burden automatically back on the state. I stress this is not necessarily true in international humanitarian law, although Geneva law is close with its starting point being a protection of victims. Humanity tempered by military necessity. Hague law, I would suggest, is different. Its starting point is the position of the attacker. It's a military necessity tempered by humanity. I will give an example from some fact finding I myself did. This was the attack on a civilian factory. And I won't state what country it was in. A human rights body came along, took one lock, and said civilian factory, no military advantage, ergo war crime. We came along, civilian factory, we could see no military advantage. But what we did see was that the attack had gone in at night when the workforce went there, indicated somebody had taken precautions in attack. Also, they had used a precision-guided munition. They're expensive, and you don't just throw them around. It targeted a particular area of the factory. This indicated to us, that from the point of view of the attacker, this was actually a high-value target, and considerable attempts had been made to minimize collateral damage. So that far from being a war crime, this was actually a good way of conducting a military operation. There is an argument for saying that the burden should always be on the state to justify their actions, but I would suggest carried to absurdity that makes more impossible. The European Court of Human Rights is becoming more realistic, I would suggest, in noting that standards of investigation may differ on the battlefield from those in peacetime. But has it gone far enough? An attacker rarely has the possibility of investigating on the ground, and is therefore often reliant on those on the other side to carry out the investigation. That brings us back to propaganda and truth-seeking. There is a need, I would suggest, for strong IHL compliance mechanisms. The International Humanitarian Fact-Finding Commission was set up in 1977 for exactly that purpose, but unfortunately, it has never been used. And to an extent, it is a child of the 1970s, unhidebound by its treaty terms. But, and this is a huge but, the International Humanitarian Law community does desperately need to look at strengthening compliance mechanisms to face the new realities of today. If it doesn't, those compliance mechanisms will increasingly be taken over by human rights bodies who do not necessarily have the expertise in International Humanitarian Law. That is required. If that happens, to quote one eminent scholar, there is a risk that International Humanitarian Law will be reconceptualized as a subset of International Human Rights Law. And I would suggest that would be in nobody's interests, neither human rights lawyers, nor International Humanitarian Lawyers. Thank you. I've run a pause as we've finished all four speakers. And I always love being with you, Charles, because there's always something provocative in what you have to say. And being in Geneva, just so you know, there are a number of human rights organizations operating here, and no doubt some in the audience. So hopefully you have been tested somewhat with some of the conclusions here. And I thought I found it interesting, your point about truth versus accountability. And again, one may want to look at it from the perspective of the victims. Do victims want truth or accountability while the challenges for international tribunals? And I think the criticism of the human rights inquiries versus the military IHL type of inquiries in terms of the approach they take has also, I think, been felt with the jurisprudence of international tribunals. We can refer to the Gottavina judgment, for instance, with different approaches and different results. And then the propaganda component and the truth finding. We have about 15, 20 minutes to go. Well, I'll do before opening it to the floor, given that some of you scribbled some notes as the others were speaking. Do any of you have anything to say in response to the other speakers before I open it to the floor? You don't need to be polite. It's, get in there, microphone. First I'd like to respond to Charles point about fact-finding bodies. It's external fact-finding is the real rub here. And that is that these treaties, the law of armed conflict treaties are about relationships between states and state responsibility to investigate. First, to determine what happened. And second, to determine what measures need to be taken to prevent them from happening again. Those are both requirements of the grave breach and minor breaches provisions of the Geneva conventions. But finally, if there is criminality involved to prosecute or extradite those that are responsible. So it's really hard to separate these three and somehow make it and avoid politicization of external entities. I agree completely on human rights bodies and the need for more compliance and states have had some discussions along this area recently. And I'm really hopeful that that'll happen. I think you all ought to read my friend Andrew's article outside that's on the table out here about operationalizing the IHL because I agree with just about 90% of it. Maybe 99% of it. What he reflects is something a colleague of mine used to call say that rules of engagement development are about training not lawyering. And the training of rules of engagement is a critical aspect of implementation of IHL. We've recently, another colleague of mine wrote an article, it should be out in this month's Army Lawyer, the next one, about the integration of DPH as a concept into rules of engagement training. And it's a very controversial provision. The name is Randy Bagwell, who just came from a NATO assignment. And I commend it to you, particularly those of you in the audience that are into military training and rules of engagement. And I disagree with its premise and that is that DPH has to be integrated into rules of engagement to fill this gap created between our nations about the concept of eminence. And that's my belief in looking at the application of the rules of engagement in Afghanistan as to where DPH fit. It fit between self-definite threat and self-defense and more offensive use of force. I would say that DPH is a dangerous concept if it becomes guidance to a soldier who's walking down a street and it goes beyond immediate threat to that soldier. That's what most soldiers, most of the time are analyzing is threats. That's what self-defense rules apply to. Now, in high intensity conflict where you have targets and you're between states, you're gonna go with status-based targeting. You find the other combatant and you kill them. But in counterinsurgency operations, in asymmetric warfare that we've been involved in now, we really need to avoid having soldiers on patrol applying DPH as a standard. Where it is useful and where we found it very helpful is to incorporate these concepts in deliberate targeting at a very high level. I'm talking at a task force level where a targeting process is very detailed where the intelligence that's provided helps the targetters figure out who is a member of an organized armed group. And we can fight about that part of DPH till the cows come home, but that's really where most Western militaries are on this issue, that if you're a member of an organized armed group and you have the intelligence to put them at the level of a high-value target member of that group, then they're targetable. I told you, Dick, I was writing a few notes there. We shan't necessarily enter into a big debate on DPH. We could be here for quite a while and the lights will go out as well. So I'll open it up to the floor now to ask any questions. I'll go on this side first and then we'll go on to that side. So there's roaming mics and I'll allow you to choose front row, second row, third row as you will, depending on where you are. Just while we're waiting for a couple of hands to go up, could I see one thing in response to... One short thing, yeah. Very short, which is that I agree with this notion that DPH is very difficult to apply in the battlefield. And I think it's important to bear in mind that the ROE construct, the NATO, the US, similar ROE constructs, they do allow, they're ingenious in the sense that they allow for these two types of targeting at the same time. So in the sense you shouldn't ever be in a position as a soldier where your life is at risk and you have to make a complicated legal decision by virtue of what you call conduct-based ROE. So you always have the right to defend yourself. The question, when the question becomes manifest is where you have a complex issue, it's gonna be the cook or whatever, take your traditional, very controversial piece on the other side who also might have a continuous combat function or this is all very complex. That decision is made in the planning room. It's made by a J5, it's with a legad by his side in the targeting cell. And this is gonna be done in a way that's allowed to go through this process. So it doesn't take away from the safety of the soldiers what I'm saying, the complexity. Yeah, as you can see, we'll stop the debate just there. Sure. As I said, we'll have a drink afterwards on DPH. We'll take three questions and sort of put them together and then have you all answer. So at least three on this side. Quick question, all four of you panelists have been involved in quote, translating IHL into military operations in your work. My question really is what would be the two or three greatest challenges you've consistently come across? Whether practical or legal? Cause that's often not talked about. And I'm just wondering from the practical angle, what has that been? Thank you. There are three in this row here. There's one there, so we'll take four. Robert James Plurson's journalist and writer and other things, but as a journalist and a writer and a translator, I'd like to thank you all for being so articulate on a difficult subject. I found it remarkably easy to follow you. So thank you. Two brief questions from Adam and Jellgaard. First of all, you spoke with the policy of protection of children of NATO. The United States has not ratified the Convention on the Rights of the Child and has no definition of a child. And the United States is the dominant member of NATO. How do you conciliate this with the policy on protection of children? The second is, could you clarify for us, please, what the role of NATO is in Afghanistan? And I'm thinking, because as I understand it, the conflict is being carried on by the United States under the ages of NATO. And we have the bombing just a year ago this week of the hospital there. And then the United States came back the next day and bulldozed the ruins and whatever. And he's refused an inquiry. And there's something there that doesn't seem right at all in terms of any sort of law. And could you clarify the role of NATO and how it might affect a matter such as this? And again, thank you. Two more questions here. We'll make them short questions. Good evening. My name is Anais Felder and I'm working with Geneva Call. I'm going to ask a question that I think mostly the ICRC will be, ICRC people will be able to answer me. I was wondering concerning non-state armed group and translating IHL into their own operation, which kind of difference can you see, can you realize? Tonight we talked a lot about rule of engagement, maybe invitation with the civil society to have a broader view and everything. But do you think that armed groups could have the same possibilities? And also because we realize that they don't have the same means in their everyday life, in their battle. For example, there is still a great debate on DPH on CCF. And all this notion involved a lot of information gathering that armed groups might not be able to have. So what would be your point of view on it? Thank you. One last hand on this side, I can see you. Thank you very much for a very interesting discussion. I personally have hundreds of questions for you, but I came up with just one and a half. Yes, thank you. So I'm having additional protocol one here. I know not all the states have party to it, unfortunately, but there's article 57.3 that says, if you have a choice of different actions for the similar military advantage, you should choose the one that is a least danger to civilian lives and civilian objects. Jean-Picter, not in his commentary, but in his book, says that it's better to wound than kill and capture than wound. I know I might be called a silly idealist here, but do you actually have it somehow in the military or operations and if yes, how do you purport it? I don't know, how do you sustain it? Thank you. Four questions. Can I just see a show of hands on this side to see how many questions we might have? At least a couple, okay, so three or so thereabouts. So we have quite a few interesting questions. The two or three challenges, how about one challenge each if possible? Yeah, I think my biggest challenge is really integrating these concepts of self-defense, direct participation, hostilities and feasible precautions. And you can see that problem if you read the inquiry that's been released by the US government on Conduce, on the MSF facility because the author of that mixed these three concepts up in ways that make it indecipherable for me. My greatest challenge was handling prisoners of war in the 1991 Gulf War. It was persuading the military that this was a serious business and needed careful and detailed planning. Comments like we'll capture them, we'll worry about them when we capture them, is a little bit late. If you have a challenge and also there are two NATO questions as well which are directly for you. The biggest challenge when you work in NATO is also the biggest strength and it's the multinationality and it is decision making by consensus. It means that 28 nations has to come to a common understanding of their national law and combine it into one NATO document and that leads me straight into the answer to your question, sir. In the policy on protection of civilian and armed conflict the United States like other nations who do not necessarily have a definition of a child use the definition for NATO purposes. And that is an opt out or an opt in that is used in a number of different circumstances. So there is a definition of what constitutes a child for the purposes of this particular policy. It is not crystal clear and crisp as one would love as a lawyer but leaves room for interpretation so that our American colleagues can also adhere to the policy or respect the policy. With regards to NATO's operations in Afghanistan I think it's important that we all understand that on the 31st of December, 2014 NATO seized combat operations in Afghanistan. On the 1st of January, 2015 we started a training advice and assist mission in Afghanistan at the invitation of the Afghan government. NATO was invited to come with a number of partner nations that are approved by the Afghan government as well as all the activities that we undertake are approved by the Afghan government before we commence. The United States at the invitation of the Afghan government are conducting certain counter-terrorism operations in Afghanistan. Those counter-terrorism operations with the consent of the Afghan government does include an element of using armed force. I can't read my own notes. Yes, inquiries. There was two inquiries after the incident in Kunduz. There was one by NATO which looked into the administrative side of it, the procedures. Has anything from our side gone wrong? And if yes, how can we rectify it? It did not look at what Charles talked about, accountability. It looked at responsibility. The reason it didn't look at accountability is quite clear because NATO doesn't have the mandate or the right to prosecute or even investigate anybody. That rests with the sending state. The United States on the other hand were quite quick in accepting responsibility or at least accepting responsibility and that they had had a role in what happened. And the United States followed their own national procedures and conducted a full investigation following their own procedures. I will not comment on the content of the report but I think it suffices to say that the United States did do what was expected of them, at least from NATO as an organization's perspective, the fact that they saw what had happened, they reported, they monitored, they investigated. I hope that clarifies the matter. Can I just add that we have ratified the child soldier protocol to the convention on the rights of the child. We view that as a law of war treaty and a responsibility to keep our child soldiers off the battlefield, which is what that protocol requires. I can just come in on the Geneva call point. One of the things that was done with the original Libyan rebels, if you like, the Benghazi rebels was there was a request made to a number of academics of which in my academic hat I was one to prepare conduct cards, simple soldiers cards for the soldiers in the field. And we did that. So that is one practical example of something that can be done even with non-state armed groups. Of course it depends on the non-state armed group and their willingness to comply with the law at all. Andrew, if you want to mention our work on non-state armed groups, as well as take the last question which was a citation from al-Qaul 57.3 of additional protocol one. Thank you very much. You must be legally trained. So Andrew, the floor is yours. Thanks. First on non-state armed groups. I worked with some of the groups from Syria at a certain point and it was interesting that you had to get past a couple of existential issues when you're teaching them about IHL in the beginning and then also in terms of the operational practice and how they follow through. But existential question number one is how do you conflict with Sharia which is something that has to be done delicately and properly with an expert in which case I'm not an expert and it's very helpful to have a PhD in Sharia to help you through that process. The next issue of an existential nature is the fact that these groups are not parties to the treaties that you're talking about in the traditional sense. They're bound by international humanitarian law. We know that, that construct is there. But how do you convince them that they're bound by the obligations of the very state which they're sometimes planning to overtake? And then it goes well beyond that too. You have the issue of detention. When you're talking to a non-state armed group about detaining under IHL, you're working under the construct of common article three which is certainly applicable and recognizes that there will be detention by non-state armed groups which is fine but you're also going to be contemplating a situation in which they're violating domestic law and the list goes on. But when you're talking about non-state armed groups it's just a completely different paradigm and Geneva Cull is an amazing organization which deals with that issue very confidently. So thanks for the question. Regarding 57, if I understand well you were getting at the point of recommendation nine effectively of the DPH study in terms of the situation in which you have to, whether there's an obligation to use minimum force in situations, even where you have a military target in front of you who's already been defined, you've already met the distinction principle. And recommendation nine I think is a very difficult one to face. I'm actually quoting because I think there was a very helpful quotation from Gloria Gagioli's study on use of force in armed conflicts which captured, and you were at that meeting, Dick, but which captured I think, what I think is the best interpretation but I'm speaking for my own self at this point. In the ICRC's view a legitimate target may be killed at any time unless it is clear that Hishi may be captured with an additional risk to operating forces. In other words, the starting point is that you have an ability to use lethal force in the first resort but there will be situations in which there's manifest lack of military necessity to do so. Take the example of a child who's sitting outside of a forward operating base making a phone call so that every time a vehicle leaves the base and goes down the road, it's gonna be exploded by those individuals who are prepared there. That would be an example where in the absence of a distinct threat like a sniper nearby, there's no reason in logic and in humanity certainly why you wouldn't go out and simply detain that child. I'm using children, I know it's appealing here motions but the point being that there will be situations where it doesn't make sense but commanders don't like to hear it put in the way that it was stated in recommendation nine but when you read a little further down the logic is actually quite militarily compatible from my humble perspective. And then we had I think three questions on one, two, three, four questions, three questions? Four questions and we'll take those and I'll just ask four questions. So take them all in one go and then get the. Jamie, we can't let that go without saying that that is the most controversial provision in the DPH study and that many states and experts disputed that provision. In fact, many of them withdrew from the process because of that provision. For those of you who haven't read the DPH study I recommend that you do read it and pay particular attention to section nine of the DPH study in terms of mitigating the humanitarian suffering and using less force. So we'll see amongst the experts but we'll leave it at that for the time being, please. Thank you very much for your presentation and time. My name is Louisa Jiroud. I'm a student at the Geneva School of Diplomacy. My question actually goes to Mr. Jackson in terms of international law. We can definitely see that the intervention of the US in Iraq was illegal. So do you believe or maybe understand why the international community has less trust in the US interest in the intervention in Syria? Thank you. Good evening. Thank you all very, very much for the presentations that were poignant and lucid. I'm one of the demons in that I am a human rights lawyer who has participated in investigations both of IHRL and IHL in places like Syria and Libya. So yeah, I expect what's coming back of me. But two questions. Accountability came up several times and I really appreciated the frankness, Professor Jackson, of your admission about the torture that occurred within the halls of the United States institutions. What I was missing, though, in the context of the accountability discussion is accountability for those actions. And in the war manual that has just come out, I'm sure there's quite stringent provisions about accountability through the ranks. And so I'm wondering about that disconnect. As far as I know, no one has been held accountable for what you admitted to the great chagrin of the United States in terms of torture. My second question was about NATO being invited by the Afghan government to participate in the fighting there. And wondering what legal framework is constraining the US actions in the sense of we know the US doesn't accept that human rights law applies extraterritorially, so they won't be constrained by that, I understand. Afghanistan has its own conventional obligations under human rights law, but presumably the US won't find themselves constrained by that. So what law forbids the US from, what law is constraining the US forces on the ground, especially if they don't think that IHL is applying or doesn't apply in that context. So I think there's an absence of a legal framework there. Thanks. Thank you so much. And I'm very sorry to come back to DPH again. I've heard a little bit of the answer to my question in the previous statements, but my question is related to child soldiers and the situation on the ground. Whether child soldiers can be members of organized armed groups, I know there's a discussion going on. Of course, they can be DPH and also in light of the capture kill debate, I've heard that it might be logical to not kill a child soldier, but legally speaking, and then on the ground, is it possible for a child soldier to become a member of an organized armed group in light of the legal framework? And also I have a little interpretation question on what Mr. Carlswell just said, but perhaps I can have your permission to ask that after the session. Thank you very much. You're welcome, Granted. Any last burning question? Yeah, there's one last burning question. So fifth row back. Put your hand back up so the... Thank you very much for organizing this event. As a representative of the Ukrainian mission, my name is Olga Kovun. And as the issue of MH-17 downing was mentioned, I cannot but take an advantage of having such distinguished panelists to ask how do you see perspectives of this investigation and this case in terms of translating IHL or implication of human rights law or any other law? Thank you. Thank you very much. A vast array of questions, some which went beyond purely IHL. So we have a couple of questions about accountability and I think what I'll do there is reach the two extremities here about truth-finding accountability. And as a specific question, of course, to you, Professor Jackson, the native questions allow you to handle and then for the DPS child soldiers pass it your way as well. And then after that we'll do a quick summary. So Charles and Nick, you guys want the truth and accountability positions? Well, the question about accountability really at the highest levels for torture is really a political question and not one that I can have any input on. In fact, the President of the United States decided not to prosecute those that were following the orders of their superiors in conducting those interrogations, those using those enhanced interrogation techniques. But there were a number of people that were prosecuted for exceeding the standards required by those policies. So where people were killed, there were people prosecuted and put in jail. In fact, the most famous one is Taxi to the Dark Side. You see that movie and you notice that everybody that's interviewed in the movie is in an orange jumpsuit. It's because they were convicted of torturing that individual without authority. Incidentally, there's still a ICC investigation on torture in Afghanistan that has not been closed. So that's one possibility. The first question about the intervention in Iraq, I didn't personally agree with the intervention in Iraq, but that's a use ad bellum question and not one that I really have any expertise in. It's a matter of international law and the UN Charter application. So there's been a lot written on that. You could do some research on that. I had one other constraint of Afghan counter terrorist actions. Those are constrained by the law of armed conflict or IHL. So the counter terrorist, offensive counter terrorist actions that are being done with the Afghans are following those rules, the same ones that I've talked about in the DOD law, War Manual. But they're also moderated by the Afghan procedure. So the Afghans are in front for most of those operations and they're following their procedures and they have a warrant based targeting approach in to counter terrorist actions. So they put their judicial police out front along with their special forces. Charles, next for this accountability truth funding. Thank you. Firstly, far from being a demon, I bow to you. Many of my best friends are human rights lawyers. I am myself a fellow of the Human Rights Center at the University of Essex and I contributed to a book coming out next month, quick plug, on human rights law in armed conflict. So I think I'm not one of those. You think human rights law does not apply in armed conflict at all. The question is how to make these two great branches of public international law sit side by side and make them so that they don't conflict with each other. That's been the challenge. And that's I think why we need to cooperate on inquiries and not simply put them all in one particular basket. That's my point on that. On Sierra Leone and Charles Soldiers. Charles Soldiers are a serious problem. Frankly, anybody who is carrying an AK-47 to my mind is a target. I don't ask whether he's 18, 15 or eight. He is a serious target. We had an incident in Sierra Leone with the British Army where some British soldiers were held up by a gang called the West Side Boys and they refused to shoot. The result was the whole patrol was captured. We had to send in special forces to release them and there were greater casualties than frankly if that patrol had simply shot one of the children right at the start because the others would undoubtedly have melted away. Charles Soldiers, can they be parts of an armed group? Yes, they can. Can they legally be part of an armed group? No, they can't. But we live in the real world and they are there and it's a real problem. Ukraine. I think the Dutch have so far handled it perfectly because they have gone into these three divisions and Parse Dik, I think those three divisions are important because they've gone step by step. Where they go from here is much more difficult. They can certainly work out who is accountable. They can actually use evidence and intelligence which they have to try to track that down. But the next question is what happens then? And where is there a forum that can deal with this matter? And that is gonna be much, much more difficult and I'm afraid I don't know the answer. I wish I did. Yes, thank you very much. I was a little unclear, both in my speech and my answer to your question. It is two distinct and different invitations that governs NATO's presence in Afghanistan that is a non-combat train, advice and assist mission and that's all we do. And then there's another distinct invitation to the United States to come and conduct certain counterterrorism operations and Dik being the true expert on American law, something like that perfectly. But having said that, it was quite interesting discussing what activities we could undertake given the fact that one of our NATO member states are not parted to the Rome statue where the remaining 27 are and Afghanistan. But I'd leave it at that, thank you. And really last words on the DPH, short words. Yeah, very brief. No, it's a very good question about membership in a non-student group of children and the answer was already given by Charles of course and a child can in fact become a member just as a child can directly participate in hostilities and lose their civilian protection. With the look behind it of course, we see that they've been forced to do so or they've been placed into a precarious situation by others, it's tragic. But ultimately international humanitarian law does not put the parties into a suicidal position. So if somebody's firing a weapon at me to take a drastic example of DPH, I can't be protecting them just by virtue of their age. But then once you get past that issue and unpack that issue, you've gotta go back and then look at issues in terms of the recruitment of child's soldiers and the convention and all those different issues. But at the moment of protecting oneself either through a DPH issue or continuous combat function issue, the law is very practical, not regretting. Unfortunately, and I've been given the nod by the organizers, we have run out of time. But so what I'll do is allow each panellist to maybe have a few concluding comments. I'm not gonna ask you one question as to what would you do differently in your life if you could do it all over again. But if you want to answer that, you can. So we'll go from left to right, thanks. I'd just like to thank the audience for some extremely good questions. I did hear that and I'd like, if I could ask you to lead with one takeaway and that is that as an international organization, NATO is trying to create benchmarks for ourselves and for our nations to follow. We're charting on-chart territory from our perspective when we reach out to all the true experts, including the audience in this room. Thank you very much. If I can beg one thing of all of you who are interested in this area of law, it's to really get to understand rules of engagement as part and parcel of the study of international humanitarian law and of the international human rights laws that applies to the use of force because until we get those two things reconciled together, we're speaking different languages, different cultures, and we already have different perspectives between military necessity and humanity. So very important to sit down and really balance these things out and not to come away with a politicization either of these subjects. There's a great publication by San Remo on a training manual on rules of engagement that I commend any of you that are working in this area to use as a training tool. I wanted to add an additional challenge that we really haven't talked about here, and that is in these asymmetric-type conflicts that we have, hybrid conflicts, whatever you want to call them, the huge challenge is characterization of the conflict. And characterization of the conflict is done at what, when I was a young soldier, I used to call echelons above reality, okay? People are deciding what type of conflict it is in the halls of the White House, the National Security Council staff, the ICRC is talking about it in a room up here, but the soldier on the ground hasn't got a clue as to what kind of conflict they're going into here. And it's really important for defining the law that applies. We used to teach at the Army Jag School, you ask what kind of place is involved and what kind of person is involved to decide what law to apply. So international armed conflict law is robust, there's a lot of it. Non-international armed conflict, and that's really most of the conflicts we've been involved in recently, it has very little law to apply, Common Article III and Additional Protocol II. So characterization of the conflict is the toughest nut to crack. Now, what's the solution to that? What I've been pushing since 2005 is to apply international armed conflict standards whenever you're involved in armed conflict because that gives you plenty of law and it protects the victims of conflict. If you apply the four Geneva Conventions to your activity as a matter of policy rather than as a matter of law, you don't have this conundrum of defining the conflict. I won't try and summarize what we've just spoken about for the past couple of hours, but the fact we've overshot by 25 or so minutes and that most of you have stayed, I think is credit to the panelists who have demonstrated the complexity of the issues, tried to address some of the ways in which we can translate IHR into military operations, but also try to highlight sort of the stark realities of the battlefield and the sort of the challenges not only for the soldier, but also for the victims and the commanders and developing the appropriate legal frameworks. So with that, I'll ask you to join me in a round of applause for our panelists and I think we'll be concluding there. And I have been informed as you terribly want to speak about direct participation and hostilities that we are having drinks upstairs in a cafeteria so you can prolong the conversation there. Thank you.