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Panelists Shed Light on Origins, Relevance of International Humanitarian Law

September 24, 2021

By Richard Blaustein

The situation in Afghanistan is just one example of the violence persisting throughout the world that summons international humanitarian law, which focuses on limiting the effects of armed conflict on civilians, soldiers, relief workers, and others who are in or near hostilities. “Born on the Battlefield,” a September 23 webinar presented by the D.C. Bar Communities Office, the American Red Cross, and the New York State Bar Association International Section, shed light on the topic.

Federico Barillas Schwank, senior program attorney with the D.C. Bar Communities Office, and William Z. Xu, judge advocate at the U.S. Navy, led the discussion covering the roots of international humanitarian law (also known as IHL), the critical role of the Red Cross in IHL development, and the core sources, cross-cutting principles, and workings of IHL.

Speaking after the webinar, Barillas Schwank explained that international humanitarian law is especially pertinent today — and “restless and timely” as ever — because “war produces untold amounts of suffering, and there is a body of law out there that applies to an intense conflict to make the conflict less severe.”

Discussing IHL history, both Barillas Schwank and Xu highlighted two seminal forces: the establishment of the International Red Cross by Nobel Peace Prize winner Henri Dunant after he witnessed the suffering of wounded soldiers following the 1859 Battle of Solferino in Italy, and the American Civil War, when Abraham Lincoln had Columbia Law School professor Francis Lieber draft the Lieber Code as a set of rules for legal and ethical rules in warfare. Xu described the latter as “one of earliest examples of written, codified IHL.” No less important was the advocacy of Clara Barton, who founded the American Red Cross and successfully advocated for U.S. ratification of the first Geneva Convention of 1864.

The interrelationship of the Red Cross and the Geneva Conventions is explicit in treaty text and continues to this day, with the four expanded 1949 Geneva Conventions governing, respectively, the wounded and sick on the field, combat at sea, prisoners of war, and protection of civilian populations.

“The Red Cross is a supremely important part of this whole ecosystem of limiting unnecessary destruction and death in armed conflict,” Xu said after the webinar. “The Geneva Conventions cannot exist without the Red Cross, and vice versa.”

Notwithstanding the eminence of the Geneva Conventions, Barillas Schwank and Xu pointed to other influential IHL sources, grouping them into three categories: customary law; treaty laws (including the Geneva Conventions, specific weapons treaties, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment); and judicial decisions. Looking at these IHL measures, Barillas Schwank and Xu focused on the clear emergence of four cross-cutting principles that bolster IHL’s minimization of suffering stemming from armed conflict. These four norms — military necessity, the distinction of civilians from enemy forces, proportionality of military actions, and limiting of suffering — are intended not to prohibit war’s goal of forced submission of the enemy but to “limit and constrain it as much as possible so that less people suffer,” Barillas Schwank said. The principles “are a helpful framework to begin to understand the nuances of IHL,” Xu said.

Though the norms provide guidance, they don’t always offer definitive answers for commanders facing hard decisions. For example, Xu and Barillas Schwank mentioned the difficulty of deciding on proportionality, which prioritizes minimizing civilian and collateral harm but does not preclude it, as when a war could be ended swiftly with an attack on enemy military chiefs who are staying near civilians. Xu emphasized that there is no mathematical formula for determining a proportional legal attack and that many factors are involved in making a subjective consideration “from the point of the actor with intelligence he or she has at the time of the act.” During a post-event interview, Barillas Schwank added that objective analysis of a commander’s reasonableness also comes into play, not dissimilar to the “reasonable person” found in tort law, in determining if the collateral damage of the military action contravened the IHL proportionality principle.

He also noted that this course was designed as a summary of more than 600 articles of law and that the proper application of international law depends quite heavily on the facts of each individual case, especially when talking about the conduct of hostilities in armed conflict.

Xu and Barillas Schwank both hope the webinar and similar IHL representations will have positive effects. “Literacy in international humanitarian law is important,” Xu said. “Teaching the public about international norms and international law, I absolutely believe [it] could help shape U.S. foreign policy for the better,” said Xu.

Barillas Schwank pointed to the Geneva Convention stipulation for states to inform citizens of IHL. “In the U.S. that role usually falls on the Red Cross and its volunteers,” he said. “By having this course at the D.C. Bar, our big hope was that we could reach a nationwide audience of lawyers and people interested in the law to let them know about this topic and let them engage with it. Sometimes people know about it but have no opportunity to engage.”

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