Contemporary IHL Challenges: targeting the sleeping fighter & other hard legal issues

Copyright: REUTERS/Jalal Alhalab

Copyright: REUTERS/Jalal Alhalab

On February 10, the ICRC's Washington DC-based Regional Delegation to the United States and Canada and American University's Washington College of Law co-hosted a panel discussion on the ICRC's new "Use of Force in Armed Conflict" report. (Click here to download the report.)

The event brought together Brig. General Richard Gross, Legal Counsel to the Chairman of the Joint Chiefs of Staff, Gabor Rona, International Legal Director for Human Rights First, and Daniel Cahen, Legal Advisor for the ICRC in Washington. It was moderated by Professor Bob Goldman of the Washington College of Law.

The panellists discussed various case studies featured in the ICRC report, which was the result of a 2012 expert-level meeting on how the law of armed conflict/international humanitarian law (IHL) and international human rights law (IHRL) converge in non-international armed conflicts (NIACs).

This issue is of particular importance at the moment because of the rising number of NIACs, and the difficulty armed forces face when operating in situations where it is unclear whether a law enforcement or a conduct of hostilities paradigm should prevail.

During last week's panel, the experts considered five specific case studies from the report, which addresses various perspectives on how armed forces operating in a NIAC should approach the following: a sleeping fighter, protests with fighters and civilians co-mingling, a check-point, riots in a detention center, and criminal gangs supporting non-state armed actors. They honed in on the "sleeping fighter" and "check point" scenarios.

The discussion focused on whether IHL or IHRL applied in each situation, and what that meant for the actions of the armed forces. If IHL applies, then anyone directly participating in hostilities may be targeted, but if law enforcement/IHRL prevails, there must be an escalation of force.  In some situations, there are various ways to get to the same result.  For example, perhaps the sleeping fighter should not be targeted, but that could be for policy or legal reasons. 

To learn more, please watch the discussion by clicking here (courtesy of the Washington College of Law).

By Tracey Begley, Public Affairs Officer for the ICRC in Washington DC