magazine Issue 1, 2014

100years ofAustralian Red Cross andIHL Inside this issue Editorial a century of war and peace: Welcome to this edition of the International Humanitarian Law Magazine, Australian Red Cross and the celebrating and reviewing 100 years of Australian Red Cross and international development of international humanitarian law (IHL). humanitarian law – by Professor Tim McCormack – page 3 The International Red Cross and Red Crescent Movement is inextricably linked the Geneva Conventions – the international laws that set out the the development of IHL since responsibilities and protections that apply during armed conflict. The 1914 and the influence of World Conventions establish the unique place of Red Cross and Red Crescent War I – by Geoff Skillen – page 6 National Societies during times of armed conflict, entrusting them to perform searching for news: World War I all their duties pursuant to the Fundamental Principles, including Impartiality tracing – by WGCDR Annie Trengove and Neutrality. – page 8 Just like the International Committee of the Red Cross before it, Australian when the ‘Flying Red Dragon’ lashed Darwin – by Dan Baschiera Red Cross was born out of war – in August 1914, just nine days after the and Kyla Raby – page 10 outbreak of World War I. What enormous work-loads and challenges it would confront in its first four years – from nursing the shattered victims of war to the ICRC in Australia in World initiating national tracing services, searching for the missing and sending news War II – by Andrea Lunt – page 12 from the front to anxious families at home. never again: prisoners of war under the Japanese Even today the presence of peace does not separate Australian Red Cross – by Julia Hartelius – page 14 from armed conflict. Many clients in our Migration Support Programs come directly from its horrors. Today, instead of sending Voluntary Aides abroad to a century of memories the front line, we have a thriving delegate program, with Australian Red Cross – collage provided by the Queensland specialists heading to war-torn parts of the world. The Conventions also set IHL Committee – page 16 the task of teaching the content and humanitarian values of IHL to military the women of the Australian Red forces and to the broad civilian population. In Australia, the Government Cross Field Force in Vietnam shares this important responsibility with Australian Red Cross. – by Dr Jennifer Mora and Julia Hartelius – page 18 Red Cross and the Geneva Conventions truly live, breathe and stand together. negotiating the protocols: key It is fitting that the articles of this special Centenary IHL magazine are all IHL work of the 1970s contributed by ‘Red Cross people’ from around Australia. We thank them – by Dr Keith Suter – page 20 for many years of commitment to the dissemination task, and are proud to the Australian Defence Force publish their words, in acknowledgement of their distinct areas of expertise, and Australian Red Cross experience and research. international humanitarian law Follow their stories from across the decades - amongst others, from World relationship: interactions since the 1990s – by GPCAPT Chris Hanna War II and Vietnam, to the advent of the Additional Protocols in the 1970s – page 22 and the International Criminal Court in 2002, to the landmark Australian Red Cross advocacy campaign against anti-personnel landmines in the 1990s. Red Cross and landmines advocacy – by Professor William Maley Please enjoy this testament to the work of international humanitarian law in – page 24 times past. It fills us with confidence to see how Australian Red Cross has Australia’s road to ratification evolved over its 100 years to respond to the changing face of warfare. As of the International Criminal we face arguably our greatest threat to humanity – the continued existence Court – by The Hon. David Harper of nuclear weapons – we must continue to raise issues of critical humanitarian – page 26 concern and disseminate the fundamental tenets of IHL to every corner of Australia and abroad via the Movement. taking IHL off the bookshelf: dissemination in practice The opportunity to pause and reflect on how far we have come in our 100 – by Emily Camins – page 28 years is crucial in ensuring our continued success as we look to take on ever the next 100 years more pressing humanitarian challenges in the future. – by Dr Carrie McDougall – page 30

Disclaimer: the articles contained within Michael Legge Robert Tickner represent the views of the authors and not President Chief Executive Officer necessarily those of Australian Red Cross. Australian Red Cross Australian Red Cross

a century of war and peace: Australian Red Cross and the development of international humanitarian law

By Professor Tim The British declaration of war mere fourteen years of Federation had McCormack, Foundation on Germany on 4 August 1914 not dimmed allegiances. automatically implicated all of the Australian Red Cross Australian Red Cross was established Dominions, including Australia, as a branch of the British Red Chair of IHL at The Canada, New Zealand and South Cross Society within days of University of Melbourne, Africa. There was no sense of Britain’s declaration of war. That this 1996 - 2010 resentment in this country at inauguration was necessitated by the having been dragged unwillingly into someone else’s war. On the outbreak of war was simultaneously contrary, antipodean patriotism to the lamentable but historically consistent motherland was strong and young - echoing as it did the birth of the men from every colonised corner of International Committee of the Red our vast land rushed to enlist. This Cross (ICRC) just 50 years prior in the early twentieth century enthusiasm for aftermath of the Battle of Solferino. Empire is unsurprising. All Australian The ICRC was established in 1863 Private John Simpson Kirkpatrick of the and, in the following year, the 1864 3rd Field Ambulance working in Shrapnel Gully states had experienced more than a at Anzac Cove, with a wounded soldier century of British colonial rule before Geneva Convention was the first on Duffy, his donkey. Photo: AWM the outbreak of the Great War and a multilateral treaty to regulate the

IHL magazine 3 Society for the promotion of IHL. Few, if any, other National Societies have a dedicated IHL Officer in every State and Territory all engaging with key stakeholders, in particular Defence Forces and academia, in their respective jurisdictions. We are fortunate to be among a small number of National Societies that have a National Advisory Committee on IHL drawing together representatives from all the key Commonwealth Government agencies and academia and influential in the development of national government IHL-related policy (Australia’s ratification of the Rome LTCOL Edward ‘Weary’ Dunlop, with LTCOL A.E. Coates, at the Nakom Paton Hospital for Statute, the Oslo Cluster Munitions recovered prisoners of war, Thailand, September 1945. Photo: AWM Convention, the UN Small Arms conduct of war on land. Australian Transfer Treaty for example). Unlike many Red Cross will always be precisely I am often asked by visiting ICRC 50 years younger than the world’s delegations to explain the level of other nations foundation IHL treaty. interest in IHL in Australia: attendance When Lady Munro-Ferguson, wife levels at IHL-focused public events with proud of the then Governor General, wrote here are striking; many Australian to her vice-regal spousal colleagues law schools offer IHL courses and military histories, and called on lady mayoresses numerous research higher degree and wives of mayors everywhere students working in the field; Australia our wartime to form Red Cross groups, her call has the highest per capita readership was predominantly to women – an of the ICRC’s flagship bi-monthly inevitable concomitant of exclusively publication, the International Review heroes who male enlistment to fight. Her of the Red Cross; both the ICRC focus was on what would now be Mission in Australia and Australian have become considered a very narrow aspect of Red Cross enjoy a significant level substantive IHL - the mobilisation of of engagement with the ADF, and emblematic of first aid skills as well as the provision the ICRC is consistently laudatory of of medical supplies to the frontline. ADF implementation of IHL in military cherished values That relatively narrow focus was operations and of ADF transparency entirely consistent with the focus of in its operational interactions with the are humanitarian the ICRC in 1863 and undoubtedly ICRC. The significance of Australian helpful in launching the Australian Red Cross involvement in IHL has figures: a chapter of what was by then an steadily developed in the last third effective global volunteer movement. of the organisation’s history – since In the 100 years since, Australian Red the adoption of the Two Additional stretcher-bearer Cross has developed many practical Protocols to the Geneva Conventions and significant programs all worthy and, subsequent to which, Australian from World War I, of further analysis but my emphasis Red Cross established its National is on the development of IHL IHL Advisory Committee, appointed and a military throughout this impressive century of IHL Officers and became much more humanitarian action. engaged with the ADF. physician from Australian Red Cross has a deserved But developments over the previous reputation throughout the entire Red three decades have been possible World War II. Cross world as a leading National because they have built upon a When Lady Munro-Ferguson solid foundation laid throughout the the concept of IHL – the legal called on lady first six or seven decades of the regulation of war to alleviate organisation’s existence. It is worth human suffering. Even in more mayoresses and reflecting on this nation’s iconic contemporary military operations figures from the two world wars. our standout national military wives of mayors Unlike many other nations with proud hero was (the then Major General) military histories, our wartime heroes Peter Cosgrove in his capacity as everywhere to who have become emblematic of Commanding Officer of INTERFET cherished values are humanitarian – the ADF-led multilateral form Red Cross figures: a stretcher-bearer from World humanitarian intervention in War I, Private John Simpson and East Timor tasked with stopping groups, her call his donkey, carting wounded Allied atrocities against the civilian combatants down the exposed population. was predominantly escarpments of the Dardenelles to the beach for medical treatment The involvement of Australian Red to women – or evacuation; a military physician Cross in IHL, from the inception from World War II, Edward ‘Weary’ of the organisation right through an inevitable Dunlop, himself a prisoner of war to the celebration of its centenary, subject to brutal treatment at the is a feature that distinguishes us concomitant of hands of his Japanese captors on from other humanitarian relief the Thai-Burma Railway but deeply agencies. In 2064, when the committed to keeping as many of his 1864 Geneva Convention marks exclusively male fellow-captives alive throughout their its bi-centenary and Australian ordeal. Perhaps there is something Red Cross its sesquicentenary, enlistment to fight. in our national psyche that admires I trust the contribution to the human compassion even in wartime development of IHL will only have and predisposes us to interest in grown in significance.

Major General Peter Cosgrove, at handover ceremony from INTERFET to UNTAET management, Dili, East Timor 2001. Photo: Department of Defence, Commonwealth of Australia

IHL magazine 5 the development of IHL since 1914 and the influence of World War I By Geoff Skillen, Chair, This is the intertwining story of Red abstain from the use of projectiles the National IHL Committee Cross and IHL – practical response sole object of which is the diffusion to need, and legal efforts to increase of asphyxiating or deleterious gases.’ protections in war – developing in But in most cases the gas used was Australian Red Cross’ centenary is parallel, over 100 years. not delivered by projectiles, but was also the centenary of the outbreak of During World War I, poisonous gases simply released, in the expectation that prevailing winds would carry it to World War I. The initial goal was to were used with devastating effect enemy lines. care for sick and wounded soldiers, by both sides, starting with their use to support their dependents and to by Germany against French troops The 1907 Hague Convention on Land assist overseas civilians caught up in in April 1915. They floated silently Warfare prohibited the employment war. Little could the new Red Cross and invisibly across the trenches, of ‘poison or poisoned weapons.’ In branch have grasped the horrors and even brooded deeply in bomb February 1918 the ICRC issued an appeal to the warring parties, noting the next four years would bring, with craters. Standard issue gas masks this prohibition, and concluding that new means of warfare unleashed and were often ineffective in offering full ‘asphyxiant or poisonous gases are a generation of young Australians protection. While countermeasures without any doubt one of the poisons devastated. By the 1920s, changes in were devised against the types of forbidden under the Convention.’ international humanitarian law (IHL) in gases initially used, by the war’s end gas had resulted in huge numbers of response to World War I were afoot. In 1925, a conference held in Geneva casualties, notably those of Russia under the auspices of the League on the eastern front. The First Hague of Nations adopted a protocol Peace Conference in 1899 adopted a prohibiting the use of these types of Above: A ward in the 2nd Australian Casualty Clearing Station near Steenvoorde, France, declaration concerning asphyxiating gases and bacteriological methods November 1917. Photo: AWM gases, where parties agreed ‘to of warfare. Australia ratified this instrument early, on 24 May 1930. The of the Hague Rules of Air Warfare Spanish flu, rather than directly from protocol has since been augmented in 1923. However, the rules military action. Today’s estimates are by the Biological Weapons Convention were never adopted in legally as high as ten civilian casualties to of 1972 and the Chemical Weapons binding form. Still today no treaty every one combatant. Convention of 1993. specifically governs the conduct of In 1914, it was understood that Post-war Australian Red Cross warfare in the air, although aerial undefended, or open cities (so-called was fully involved in the care of operations must comply with the because defensive efforts had been returning sick and wounded soldiers, cardinal principles of modern IHL abandoned), would not be bombed establishing convalescent homes, - military necessity, distinction and or otherwise attacked. Apart from hostels and sanitoria, in agreements proportionality. this, there was nothing in the law with the Department of Defence and It can be argued that in governing armed conflict akin to the Repatriation. A network of Anzac World War I the principle that principle of distinction. Hostels provided care for the totally and attackers must distinguish between permanently incapacitated, such as There are striking differences in the combatants/civilians and between amputees, nerve and shell shock cases. law governing armed conflict today military objectives/civilian objects The effects of gas were especially compared to IHL in 1914. The same was less needed than in later horrendous, and death came cruelly, may be said of Australian Red Cross. ultimately from chemical pneumonia and conflicts, as proportionally there In 1914, it was focused on equipping pulmonary edema. Valiant Red Cross were far fewer civilian deaths. At and staffing military field hospitals. Voluntary Aides nursing such patients the conclusion of the war there Today it is intimately involved in the night and day well learned the truth of were an estimated 10 million development of the law, advocating Lady Munro-Ferguson’s words, ‘Peace combatant deaths compared to for a more humane battlefield. Both of will not close the hospitals; the sick and 6 million civilian deaths, and in fact Australian Red Cross and IHL have development IHL most civilian fatalities were due been dramatically transformed over wounded will be the last to demobilise; therefore Red Cross workers must be to famine or disease, such as the the 100 years. the last to quit their posts.’ While there are records of the use of since 1914 and the influence hot air balloons to drop bombs before World War I, rapid progress in aerial navigation before the Second Hague Peace Conference of 1907 had led of World War I to the adoption of a declaration that prohibited ‘the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.’ However the United Kingdom and the United States were the only major powers to ratify the declaration. While there are generic provisions in the 1907 Hague Regulations on land warfare that would apply to attack or bombardment from the air, there was nothing specifically applicable to bombardment from aircraft. World War I provided the first real showcase of air warfare. Both sides used aircraft and Germany used zeppelins to bomb enemy positions and, on occasions, civilian targets. In 1914, Britain had only 110 warplanes, but by the war’s end, it had produced, together with France, 100,000 more. Germany produced 44,000.

World War I clearly showed the potential Stretcher-bearers wearing gas masks in a French trench. In February 1918 ICRC for widespread destruction by aerial launched an appeal against gas, which it referred to as a ‘barbarous innovation bombardment and led to the drafting … which we can only describe as criminal.’ © ICRC Library / RR

IHL magazine 7 searching for news: World War I tracing By Wing Commander Provisions such as Articles 15-17 Crescent networks in nearly 190 Annie Trengove, of Geneva Conventions I and II take countries, is the only one of its kind representing the account of this in situations of armed in the world. Australian Red Cross conflict. Parties are required to search has provided an unbroken service of South Australian IHL for and collect the wounded and tracing virtually since its inception, and Committee dead, to confirm their identities, often this important work deserves to be by military discs (colloquially ‘dog- highlighted as part of Australia’s early It is often said that the hardest thing tags’) and where possible to identify military history. for humans to deal with is uncertainty. causes of death. In general, bodies From the outset of World War I The plight of Malaysian Airlines Flight should be buried, not cremated; casualties were high. By 1918 they 370 served as a timely reminder of graves must be mapped and marked. were extraordinary. Of 416,809 the deep-seated human need to Similarly, the taking of prisoners Australians enlisted, 60,000 had been know the fate of missing loved ones of war (POWs) must be recorded killed, and some 156,000 had been through National Information Bureaux or at least the manner of death and wounded, gassed or taken as POWs. and information forwarded to next of location of remains. This human quest Major Australian newspapers posted kin as expeditiously as possible. is common to all cultures. official casualty lists, but simple The International Red Cross Tracing categories of ‘missing’, ‘wounded’ Service helps families separated by or ‘killed’ were dreadfully inadequate. Above: London, England. Women at work in war, conflict, disaster and migration At first, distressed Australian families the Index Card Department at the Prisoners of War Information Bureau, 1916. (Donor British to search for the missing, re-establish had to contact the British Red Cross Official Photograph BB6) Photo: AWM contact by exchanging family news in Cairo for more information about and where possible re-unite people. their loved ones, before, in 1916, an Top right: London, England. 1918. Studio portrait of Vera Deakin (later White) in her Red The International Tracing Service, Australian-designated operation was Cross uniform. Photo: AWM working with Red Cross and Red born. Vera Deakin (1891 – 1978) Australian Red Cross Women played an important, although often Wounded and Missing underappreciated, role in the war effort. Vera Deakin, the daughter of Alfred Deakin (Australia’s Enquiry Bureau second Prime Minister) was only 24 years of The story of the Allen brothers, Robert age when she and her friend Winifred Johnston and Stephen, shows the persistence of volunteered to work for the Australian Branch of the British Red Cross. They began work in 1916, gaining experience from British and Australian Red Cross searchers. Both Canadian Red Cross tracing colleagues, then formed the Australian men were part of the 13th Battalion, Red Cross Wounded and Missing Enquiry Bureau, initially in Cairo and but were listed as ‘missing’ after an then in London. attack near Pozieres in August 1916. Vera Deakin’s success lay in managing and mobilising a large body of Desperate for news, the Allen family volunteers to carry out Red Cross tracing investigations. Only a small contacted Red Cross. After almost a number of ‘searchers’, as they were known, were paid. Their motivation year of compiling records and eye- was simply to remove all doubt for Australian families seeking the raw truth. Searchers interviewed soldiers on active service in the field, on witness accounts, Red Cross was able leave or in hospital. They followed threads of stories and rumours, but to confirm that the brothers had been ultimately sought eye-witness accounts. The exact circumstances of killed in action. Although the ending to deaths and detailed physical descriptions of the soldiers in question the story was tragic, Red Cross was were checked and re-checked before news was sent home. able to help this Sydney family to find At times Miss Deakin’s relationship with the Army was sorely tested. closure and begin to grieve. Records suggest her dealings could be met with suspicion and even jealousy. Australian Red Cross became the vehicle for those relatives who had been unsuccessful in obtaining satisfactory information from military authorities. Families trusted the Red Cross. Searchers were diligent in their missions, and families treasured the information they received - handwritten, personal replies, often from Miss Deakin herself. A sample note of gratitude came from Gunner Marginson.

4th Battery RBAct Heytesbury, Wilts

Dear Miss V. Deakin, I have to thank you for the kind and sympathetic letter I have received notifying me of the manner and details of the way in which my dear Brother (680 L/C G. Marginson 21st Batt.) met his death in action, and the system by which you gain your information reflects great credit on your society which is doing so much now to alleviate the suffering of relations of the men who go out. The greatest blow is over now. Again thanking you, I am yours. Gunner Arthur Marginson

In 1918 Vera Deakin was awarded an Order of the British Empire for her contribution to Red Cross, on the first OBE civilian list. After the war she married Captain (later Sir) Thomas White, of the Australian Flying Corps, a prisoner with whom she had exchanged letters and the only Australian ever to escape from a Turkish POW camp. It sounds like a Hollywood ending, but the horrors of Top: Letter relating to Private Stephen Charles Allen and World War II were to haunt her soon enough. As Lady Vera White, Private Robert Beattie Allen. Information from various Divisional Commandant and Honorary Director of the Enquiry sources confirmed the death of the Allen brothers. Bureau, she was again to activate the tracing, message and Sydney, May, 1917. Photo: AWM POW work, taking charge of all such services to and from Above: Family portrait of the Allen family of Manly, NSW. Occupied Europe from 1939 to 1946. August 1915. Photo: AWM when the ‘Flying Red Dragon’

By Dan Baschiera and They watched while some planes Japanese Mitsubishi ‘Zero’ fighter Kyla Raby, representing peeled out of formation to shoot up planes. Sergeant Hajime Toyoshima the Northern Territory the radio shack at the local mission. would probably have noticed his Zero Father John McGrath rushed to send rapidly losing pressure. By the time IHL Committee a warning to Darwin of an ‘unusually he approached the southern end of large’ air formation bearing down on Melville Island, the largest of the two the islands. No-one in the big smoke land masses that make up the Tiwi On 19 February 1942, our appears to have paid any attention. Islands, he would have known he sunburnt country was attacked Less that half an hour later, the first could not make it back to the safety of from the air for the first time wave of a Japanese air strike hit the the aircraft carrier Hiryu. unsuspecting and somewhat sleepy in its history. The people of Tiwi Islander Matthias Ulungura was port of Darwin. the Tiwi Islands, just eighty out gathering bush tucker in his clan kilometres north of Darwin, Despite the legal protection afforded family hunting ground and saw the were the first to see the by the rules of war, the clearly marked Zero in the distance, coming in low. hospital ship AHS Manunda anchored Then he heard it crash-land, sliding Japanese ‘Red Dragons of War’ in the harbour was hit, strafed with along the mud flats just beyond the flying overhead. shrapnel and set ablaze. The medical mangrove thicket. quarters and navigational equipment Remaining hidden, Matthias watched were totally destroyed. Eleven of the the Japanese airman escape the ship’s crew were killed. relatively intact aircraft, and followed The downed Japanese Mitsubishi Zero Amidst the mayhem a .303 rifle bullet him through the bush. Matthias B11-1 on Melville Island, Northern Territory, 27 February 1942 fired by an unknown defender found became concerned when he realised Photo: AWM its mark in the oil tank of one of the that this strange-looking soldier was following the chatter of his wife and ‘long bum’ to eat; he now eat real relatives sitting in a clearing nearby. bush tucker.’ Matthais did not give Matthias watched, incredulous, as his adversary a drink because of any the soldier rushed at the women and specific knowledge of international seized his baby son Clarence as a humanitarian law. His actions were hostage. There was no time to lose. simply a reflection of his care for Using every ounce of his bush skills someone needing food and water. Matthias ‘snuck up silently on that Such is the very point of so many Jap Man.’ IHL provisions. They are not about complex legal obligations but the Over seventy years later, in the cool essence of common humanity. shade of a sit-down tree on the beach of the Apsley Strait, we felt After an overnight walk to the mission, privileged to listen to Ronald (‘Rocky’) and help from two male cousins, Tipungwuti, grandson of Matthias, Matthias handed his prisoner over to and a large group of Matthias’ RAAF personnel. Later, he was able descendants, proudly telling the story to lead Australian aircraft experts back of their brave grandfather and great to Toyoshima’s wrecked plane. It was uncle. We were told how Matthias the first time that the Allies were able stuck the handle of his tomahawk to examine a Zero, the remarkably into the back of the ‘Jap Man’. Using efficient aircraft which had dominated Mattias Ulunguru, the war hero. a line from the Western movie he the skies over Pearl Harbour and Photo courtesy of Peter and Sheila Forrest, Darwin. had recently seen at the mission which now posed a very real threat Matthias called out ‘Stick ‘em up: I’m to Australia. Hop-along Cassidy.’ Totally startled, This is the little known story of an war by the International Committee Sergeant Toyoshima released the indigenous man, out gathering food of the Red Cross and transferred to baby into the arms of its mother, for his family, who captured the first Cowra, NSW. He died in August 1944 Maria Asumpta. Matthias had just enemy soldier on Australian soil in during the POW escape attempt made history by capturing the first World War II. For his part, Toyoshima known as the ‘Cowra Breakout’ of prisoner of war on Australian soil. was duly registered as a prisoner of which he was an instigator. lashed Darwin

Unbeknown to him at the time, the Geneva Conventions establish rules governing the treatment of prisoners of war. Once Sergeant Toyoshima had been captured, international humanitarian law regards him as hors de combat, out of the fight, and due certain fundamental protections. At the start of World War II, Australia had ratified the Third Geneva Convention for Prisoners of War; Japan had signed but not implemented it as domestic Japanese law so was not fully nor formally bound. The 1929 Geneva Convention, Article 26, prescribes that sufficient drinking water, and basic daily food rations, should be supplied to prisoners of war. One of Matthias’ great grand- daughters voiced what happened next, telling us how ‘Grandfather, Ronald (‘Rocky’) Tipungwuti, Red Cross Tiwi Islands staff member, grandson of Mattias Ulunguru he give that Jap Man spring water and Red Cross Tiwi Islands staff member, stands with his family on the banks of Apsley Strait to drink with periwinkle, mussel and between Bathurst and Melville Islands. Photo: Dan Baschiera

IHL magazine 11 the ICRC in Australia Japanese internees leave the train that brought them from Hay to the Loveday Internment Camp in the Barmera area, near Renmark, South Australia, May 13, 1943. Photo: AWM

By Andrea Lunt, internment of enemy aliens was initially representing the ICRC to be an exceptional practice, in time Mission in Australia it became more generally applied. The National After Japan entered the war in 1941, It’s a little known fact that World Japanese nationals in Australia were Security Act War II internment camps operated detained en masse. in all Australian states, and in places During World War II the International 1939: the as remote as Rottnest Island. The Committee of the Red Cross (ICRC) camps were to detain residents visited internment camps across government was collectively considered a threat to most warring nations to monitor the national security, to appease public treatment of those held captive and empowered to sentiment against ‘enemy aliens’ to improve conditions of detention. In and to house thousands of overseas 1940, following increasing transfers control nationals internees, including prisoners of of POWs and civilian internees from war (POWs), sent from overseas to Britain to Australian camps, the of countries Australia. The number of internees ICRC decided an Australian-based at war with peaked in 1942 - approximately delegation was necessary. While 7,000 foreign residents of Australia, Australian Red Cross led in many areas Australia and to and a further 8,000 internees sent of humanitarian response – including here after being detained as far away running Bureaux for Wounded, Missing set regulations as Britain and the Middle East. The and Prisoners of War in each state legal basis for Australia’s wartime – it was the ICRC’s responsibility to about their internment policy was the National visit the Australian camps because Security Act 1939. Under this Act of its mandate under the Geneva treatment. the government was empowered to Conventions. control nationals of countries at war After months of negotiation with the with Australia and to set regulations Australian government, the ICRC’s about their treatment. While indefinite proposal for a local delegation was accepted in early 1941. In line with from German POWs in Australia.’ Today, the ICRC continues to work its impartiality, the delegation’s The cable refuted reports that with the Australian government on key concern was the protection of German POWs in Australia had been the development of law to protect all POWs and civilian internees in prevented from receiving packages detainees in situations of armed Australia, regardless of race, political and requested ICRC make immediate conflict. The ICRC is leading a affiliation or religion. Australia hosted representations to German authorities major consultation process with three ICRC representatives during the to rectify the situation. States, including Australia, on how war, the longest-serving being In a Sydney Morning Herald report in to strengthen legal protection for Dr Georges Guillaume Morel, a March 1944, Dr Morel wrote of the persons deprived of their liberty doctor of economics. Dr Morel was activities of the Red Cross in wartime, in relation to non-international to encounter diverse populations saying they were ‘a tribute to our armed conflict. In comparison to inside the camps - including crews of civilisation and a token of our spiritual international armed conflict such merchant ships captured in Australian maturity.’ While the Red Cross indeed protection is very limited. waters, Jewish refugees who had brought the light of humanity to many The Strengthening International been living in Britain to escape Nazi during the war, there were countless Humanitarian Law Project aims to persecution and Australian residents others it was unable to assist. World bolster the law in four key areas: of German, Japanese and Italian War II’s horrors, in particular the the grounds and procedures for backgrounds. genocide of inmates in Nazi death internment, conditions of detention, At the outbreak of World War II, camps, highlighted the urgent protection for especially vulnerable despite nearly two decades of ICRC need for an international agreement groups of detainees and transfers effort, there was no international protecting civilians in wartime. Fifteen of detainees from one authority convention covering the treatment of years after the initial Tokyo Draft, the to another. Such consultations interned civilians. A draft convention international community finally agreed will inform a report setting out of 40 articles had been approved to the 1949 Geneva Convention (IV) recommendations to be considered by the International Conference of relative to the Protection of Civilian by the International Conference of the Red Cross in Tokyo in 1934, but Persons in Time of War, a treaty the Red Cross and Red Crescent ICRC in Australia finalisation of this ‘Tokyo Draft’ had signed by Australia in January 1950. in 2015. in World War II been postponed due to war. Late in 1939, in the absence of a formal agreement, the ICRC negotiated with belligerent nations that the 1929 Geneva Convention on Prisoners of War be applied to interned civilians. Thus, conditions in the Australian camps were maintained in accordance with the 1929 Convention, along with a combination of National Security Regulations, Statutory Rules and Orders, and Camp Regulations and Rules. In reality, many practices and policies outside these frameworks were also negotiated, and they relied on reciprocal arrangements with enemy nations. While this led to some positive outcomes for detainees, reciprocity could also be invoked negatively, as evidenced in a cable from Australian Red Cross to the ICRC in September 1942. It read: ‘…deeply concerned press reports that German authorities contemplating restrictions on incoming letters addressed our Prisoners held in Cowra POW Camp A, New South Wales, September 1942. POWs as reprisal for non-receipt letters ICRC Delegate, Dr George Morel, is seated second from right. Photo: © CICR

IHL magazine 13 never again:

Australian and British POWs laying track near Ronsi, Burma c 1943. Photo: AWM

By Julia Hartelius, In reviewing 100 years of IHL and to Thanbyuzayat, on the border IHL Volunteer Australian Red Cross, it would be between Thailand and Burma. disingenuous, even dishonest, not The Japanese had signed but never to acknowledge how difficult it is to ratified the Convention relative provide adequate protection when to the Treatment of Prisoners of Parties to the conflict are either War, Geneva July 27, 1929. At unwilling or unable to support our the outbreak of war the Japanese work. Certainly the prisoners of war government had notified that it would held by the Japanese during World apply the provisions of the Geneva War II were one group the Red Cross Convention for prisoners of war and was mostly unable to reach. In all, civilian internees mutatis mutandis some 22,000 Australian service (‘with the necessary alterations’). personnel were captured by the The reality, and the practice of their Japanese. One third of them would military, was very different. never return home. Stunned by the swift fall of Singapore Prisoners of war were held in Changi, in 1942, when the vast majority of the main camp in Singapore, and Australian POWs were taken, the throughout Asia, in Java, Sumatra, Australian public responded eagerly Ambon, Borneo, Manchuria, Formosa to Red Cross fundraising appeals for (now Taiwan), and Japan itself. POWs. Particularly successful was Thousands endured torture, disease, the ‘Adopt a POW’ Scheme, where starvation, inhumane work conditions, individuals, families, and sometimes Above: Red Cross fundraising poster and degradation and deprivation of all streets, pledged to donate the Red Cross Parcel and family letter hoping to reach relative via Tokyo, with only address kinds, as they toiled to build a 420 amount needed to support one ‘Thai Camp, Thailand’. Photo: AWM kilometre rail link from Bampong POW. In Europe the ICRC found ways of getting parcels to POWs, for government agreed to accept relief Prisoners of war, as stated by the example via neutral Portugal. Many parcels brought overland or by sea Geneva Conventions, must be treated of the approximately 8,000 Australian through Russian territory. Parcels with dignity and respect, and deserve POWs held by the Germans and were rushed to Vladivostok but were fundamental protections to ensure not allowed further. the Italians would attest that Red their survival and their repatriation Cross parcels saved their lives. But In the intensely militaristic culture of at the end of hostilities. Often it on the other side of the world, in the the time, the Japanese saw prisoners has been reciprocity – the idea of Asia-Pacific theatre of war, no formal of war as a disgrace. Japanese arrangements benefitting both sides arrangement for the exchange of relief civilian internees held in Australia – that has provided the key. Both parcels was ever agreed. Efforts to received some parcels and money negotiate met with delay after delay, via the Japanese Red Cross. Their the ICRC and Australian Red Cross obstacle after obstacle. Requests to prisoners of war did not: they had tried everything to reach Australian the Japanese government were often brought dishonour upon themselves POWs under the Japanese, but were ignored, simply met with silence. and the army. unsuccessful due to the lack of this Communication of news was equally When the war ended the horrors of mutual understanding. The spectres fraught. The Japanese had indicated the Japanese camps were revealed. of Sandakan, the River Kwai and in early 1942 that they would set up During the early weeks of 1945 a Hellfire Pass still admonish the world a POW Bureau in Tokyo, but the first Red Cross Field Force Recovery of IHL with ‘Never again.’ prisoners of war under the Japanese news of those captured in Malaya Unit was dispatched to Borneo and did not reach Britain until November Singapore. Red Cross workers, of that year. When lists of POWs did including Tasmanian Phyl Daymon, come, they were never complete. entered Changi, and found men of Many thousands were never heard skin and bone, barely alive. Many of at all, either officially or unofficially. of the surviving POWs were in such The only relief came in November a weak state that they had to be 1943 when 23,000 letters and cards, ‘island-hopped’ home, regaining then another set of 14,000, suddenly weight and strength sometimes for arrived. Many Australian families days or weeks before the next leg spent months and years at home of the journey. At each location they without news. found a Red Cross Field Force station providing medical treatment Constant pressure on the Japanese and welfare services. government by the ICRC to provide lists of prisoners and their locations, to open up lines of communication ‘They were very and get relief parcels through were largely unsuccessful. Only a few very sick men [...] parcels managed to reach those too ill to go any in desperate need. Australian Red Cross, spearheaded by Chairman further until we Dr John Newman-Morris, explored every option, even attending a built them up’, Burma or Thailand. 1945. Corporal Reginald Lloyd conference in Washington to plead recalls Maureen White, Harvey, showing the condition of many prisoners of the cause. In April 1943 the Japanese Field Force Officer on Morotai. the Japanese at the end of the war. Photo: AWM

IHL magazine 15 ‘Storpedoettes’ – for parachuting emergency blood supplies, developed in 1950s from smaller World War II versions. The delivery Australian Red Cross of fresh blood and serum across the Pacific, often from Brisbane, put forward proposal saved countless lives. Red Cross Archival Image for the Henry Dunant Medal at 20th International Red Cross Conference, Vienna 1965. It remains the highest honour the Movement can bestow. Red Cross Archival Image

Parcel sent to Australian POWs held in World War II Europe. Tomas Macura (left) and Mark Gidding, 6000 parcels were packed and sent each week. Food, University of Adelaide, winners of ICRC’s especially biscuits, was fortified with extra vitamins. 2012 Asia-Pacific Regional IHL Moot, held Red Cross Archival Image Dissemination poster annually in Hong Kong. © Australian Red Cross © Australian Red Cross a century of memories

World War II store in Papua New Guinea. Red Cross Archival Image Ngapamurrumi ngawu-yati yuwurrara ratiwati, Bathurst and Melville Islands. Tiwi Red Cross staff, between Melville and Bathurst Islands. In a 2013 poster series, indigenous volunteers depicted their understanding of the 7 Fundamental Principles - here, Unity. © Australian Red Cross

Field Force Officer John Nimmo with Corporal Alf Bray (carried, wounded) on Mubo-Salamaua trail, Papua New Guinea 1945. (Later Sir) John Nimmo served with British Red Cross team that liberated Belsen concentration camp. Red Cross Archival Image

Young Humanitarians draw attention to the Field Force welfare team of Maxine humanitarian consequences of nuclear weapons in a Frost, Moya Ford and Elizabeth Funck IHL Manager Glenn O’Neill role-plays as an flash-mob in Bourke St Melbourne, 2011. ready for Malaya, 1953. ICRC delegate, ‘negotiating’ with military © Australian Red Cross Red Cross Archival Image police to enter a detention facility, Kangaroo Exercise 1992, near Katherine NT. Red Cross Archival Image Leon Stubbings (Secretary General 1955-1988) and Sir Geoffery Newman-Morris (National The quintessential face of Red Cross in World War Chairman 1958-1978). For decades both thrived in I – the uniform of Voluntary Aid Detachments. IHL’s strength: its young professionals. international roles. Red Cross Archival Image VAs carried out domestic and quasi-nursing Melbourne’s Friends of IHL volunteers, responsibilities in hospitals and convalescent homes. with Her Excellency Ms Quentin Bryce AC, Government House, Sydney, 1916. Governor General at their 2006 Women Red Cross Archival Image and War event. Photo: Amy Halihan

Parcel sent to Australian POWs held in World War II Europe. 6000 parcels were packed and sent each week. Food, Queensland Enquiry Bureau for the Wounded, especially biscuits, was fortified with extra vitamins. Missing and POWs, Brisbane 1942. As envisaged Red Cross Archival Image Statutory Meeting welcome reception at the Opera House Sydney, 11 by the Geneva Convention III, Article 122. November 2013. © Australian Red Cross /Resource credit David Gray Red Cross Archival Image a century of memories collage provided by the Queensland IHL Committee

Packing of comfort packages at Ngapamurrumi ngawu-yati yuwurrara ratiwati, Bathurst Australian Red Cross Depot in London and Melville Islands. in WWI. Photo: AWM Professor Tim McCormack and Tiwi Red Cross staff, between Melville and Bathurst Islands. Dr Helen Durham, exceptional In a 2013 poster series, indigenous volunteers depicted academic minds and IHL their understanding of the 7 Fundamental Principles - here, contributors of the 1990s/2000s. Unity. © Australian Red Cross

Note from anonymous donor, still grateful for World War II assistance received as teenage internee in Java. Received by Fundraising Department in Victoria 2001.

IHL Manager Glenn O’Neill role-plays as an ICRC delegate, ‘negotiating’ with military police to enter a detention facility, Kangaroo Map of the fictional Orangetown – an interactive school’s Exercise 1992, near Katherine NT. resource about military targeting. © Australian Red Cross Red Cross Archival Image the women of the Australian Red Cross Field Force in Vietnam By Dr Jennifer Mora, The Australian Red Cross Field Force social services and to assist in the representing the arrived in Vietnam in 1965, a matter care of the sick and wounded, their Tasmanian IHL Committee of weeks after the Australian Army. Its families, and other hospital workers. authority came from the First Geneva In total 20 Field Force representatives and Julia Hartelius, Convention, specifically Article 26: served in Vietnam between 1965 and IHL volunteer 1971, often alongside New Zealand ‘The staff of National Red Red Cross colleagues. Despite their Cross Societies… duly role being little known at home, these recognised and authorised women - for they were all women by their Governments… but one - disregarded their personal safety in order to ease the burden for [may be employed to act Australian soldiers caught up in the as auxiliaries to the regular horror and mayhem of war. medical service of its armed That welfare rather than medical forces] providing that the assistance was being provided to the staff of such societies are troops did not make the work any less subject to military laws and life-saving. Pam Spence (Werner), the regulations.’ first Field Officer in Vietnam, recalls being woken by a Major on her second As an officially accredited night, with the news that wounded philanthropic organisation to the had been brought to the hospital military, the Australian Red Cross where she was stationed. When these function was to provide welfare and boys, in torn and blood-stained jungle greens, realised that Pam was also on the pad, pushed me ‘Aussie’, their relief was palpable. out and said ‘We’re off’. ‘We saw ‘As I talked to them I could There I was, not knowing see them relax; somebody the location. Suddenly a was there who knew about door opened and someone horrible them. I reassured them.’ beckoned me in. It was an injuries, The role, being on deck whenever exciting night with fighters needed, 12 to 14 hours a day, was taking off all the time and exhausting and busiest during heavy bombers coming in and military and periods of fighting. The tropical out. Amid all this turmoil conditions in Vietnam were trying, we were able to help the in either the intense heat of the dry civilian. They’re season or the constant and heavy wounded.’ rains of the monsoon. Malaria The Australian Field Hospital at Vung engraved in plagued everyone. The nature of the Tau, the 8th Field Ambulance at fighting took a heavy psychological Nui Dat (the Australian Task Force toll. Concealed enemy troops, Base), the United States’ Hospitals my mind, still guerrilla tactics, landmines, booby in Saigon and Long Bink, Da Nang, traps - the ‘front line’ was anywhere the RAAF sick bay at Phan Rang: the make me go and everywhere, and danger was Field Force covered them all, as well ever-present. Each day, Australian as having personnel in Singapore Red Cross women accompanied a and at the No 4 RAAF Hospital at cold…’ Brigadier on his morning flight into Butterworth, Malaya. Spare time, rare of the the heart of the fighting zone. Here as it was, was easily taken up with women they would tend to the wounded, giving lectures to the troops on the Marie Boyle assist with medical evacuations, Geneva Conventions, visiting local transmit casualty reports and take orphanages – in particular to help Australian Red Cross messages which were sent on to lift the nutrition levels of the children families at home. Australian Red by supplying high protein biscuits – Cross Field Force Officer Janice running a book/magazine service and Webb (Hilton) of Victoria, recalls: taking shifts on the RAAF’s Australian Field Force in Vietnam Forces Radio. ‘The war was terrible but During the Vietnam War, Australian we didn’t have time to Red Cross became all too aware of think about that – we just the difficulties in public perception felt there was work to be that arose from its involvement, done. It was hard work, and that its traditional roles relating to the welfare of servicemen, often especially trying to help misunderstood, may be drawing to a those who had the most close. Yet the troops they cared for horrific injuries, but it was had no doubt about the importance rewarding. We all gained of the Field Force’s contribution, the boost to morale that they brought to strength from it.’ troops fighting a particularly brutal Marie Hunter (Boyle) of South and unpopular war. The dangers and Australia, who completed two tours trauma of war are not necessarily of duty, recalls the Tet Offensive of lifted with the absence of weapons Top left: Commandant Janice Webb (Hilton) 1968: nor the protection of the emblem. (far right), Australian Red Cross, with walking The Australian Red Cross Field Force wounded at 8 Field Ambulance. Vietnam: ‘It was the first time I had provided service that would have Vung Tau Special Zone, Vung Tau, 1967. Photo: AWM, courtesy of Marie Boyle seen any artillery fire at otherwise been neglected. These brave women provided comfort Bottom left: Red Cross Officer Carmel O’Shea night. When we got to the on the RAAF Forces Radio, in Phuoc Tuy to others at the expense of their province, August 1970. Photo: AWM hospital it was in darkness own, and their service, like that of because of the fighting. Above: Wilva Ghersi (left) and Marie Hunter their World War II and Korean War (Boyle) outside 8 Field Ambulance in Nui Dat, They put the chopper down counterparts, is worthy of due record. Phuoc Tuy Province, 1968. Photo: AWM

IHL magazine 19 negotiating the protocols: key IHL work of the 1970s

By Dr Keith Suter, Chair, In the relaxed pre-9/11 terrorism- came from treaties, such as the Hague New South Wales IHL conscious world, I was able to gain Conventions of 1899 and 1907, and Committee entry because of my links with a much of the Hague Law dealt with series of NGOs. Unlikely as it sounds weapons themselves. now, interested observers were able A quarter of a century after the In the 1960s, the International four Geneva Conventions were to move freely among the diplomats Committee of the Red Cross (ICRC) adopted in 1949, a further Diplomatic and attend both the formal sessions decided that it was necessary to Conference was convened in and evening receptions. ‘reaffirm and develop’ international Geneva to discuss supplementing humanitarian law to make it applicable and updating them. The route to the the road to the to the new era and to address the 1974 Conference had been paved 1974 conference means and methods of warfare. This with controversy, and it continued was a courageous move. The ICRC Since the 1950s guerrilla warfare right through the conference process convened committees of government until the final session in 1977. had become the predominant form experts. From the outset it was clear of fighting, used in wars of national that this was going to be a project I was fortunate to be in Geneva liberation across Asia and Africa more politically fraught than the at the time, undertaking research against European empires. The 1949 work of 1949. Many of the national for my PhD (University of Sydney) Geneva Conventions, born of World governments that now existed had on the international law of guerrilla War II, had little to say about it. The been colonies in 1949 and had warfare - later to be published as An Geneva Conventions principally therefore been excluded from the International Law of Guerrilla Warfare: dealt with the human victims of drafting of the Conventions. Early on the global politics of law-making. armed conflict and did not regulate it was decided that it would be too its means and methods. In so far as risky to attempt the draw up new Above: Conference auditorium, Geneva, 1977 there was any relevant international Conventions. If everything went into the Photo: © CICR/Kurz, Jean-Jacques. law regulating means and methods, it ‘melting pot’ even less might emerge. The four 1949 Conventions would colonies were over. Article 1(4) talks remain, and Protocols would be of conflicts in which people are added. fighting against ‘racist regimes and Tension amongst governments alien occupation.’ This language was a scarcely coded reference, was running high. All governments first to South Africa, which still ran had concerns about law that might an apartheid regime and, second, to further regulate their ability to fight. ongoing territorial disputes between They were apprehensive about any Israel and Palestine. Protocol II international regulation of what they built on Common Article 3 in the deemed to be ‘internal conflicts’. four Conventions and ended with Experts from the newly independent a mere 28 Articles to regulate non- states wanted to declare a special international conflicts. status for national liberation movements - something opposed by Creating the two Additional Protocols representatives from the West. was a forewarning of how difficult it was going to be to create new treaties in a complex modern era. the diplomatic The Diplomatic Conference’s conference outcome was the best that could be expected, given the highly Noreen Minogue, Today’s diplomacy, such as in charged political environment. The efforts to tackle climate change, two Additional Protocols are far less whose excellent commonly encounters division and regulatory than the ICRC hoped for in stalemate. Alas, the 1974 conference the late 1960s. Protocol II deals very communication was a bitter encounter of that superficially with non-international skills for the kind. The Swiss Federal Council conflict and there is an immense hosted the event. However it had need for stronger regulation. Australian had little experience in convening The ICRC carries out its valuable delegation made any large international gathering humanitarian work based on its since 1949. Switzerland did not carefully outlined mandate in the her ‘a much- have full membership of the United Conventions and Protocols. From key IHL work of the 1970s Nations until 2002, even though it there the ICRC treats the Protocols appreciated envoy’. benefitted financially from having as a general basis from which to UN conferences and agencies on negotiate with parties in a conflict – Red Cross Archival Image its soil. Switzerland too was on a operating pragmatically in the legal steep learning curve. The ICRC’s gaps that remain. draft documents formed the basis of discussion. The 1974 session ended in political deadlock. Instead of one neat meeting (as in 1949) it was clear that the Additional Protocols, if they were ever to be finalised, would require much more thrashing out. Three more annual sessions, and a variety of informal gatherings between them, were required for a final result. Two Additional Protocols were finally adopted in June 1977. It was decided (as per the formulation of the four Conventions) to treat ‘non- international conflicts’ differently from international ones. The controversial Article 1 of Protocol I, on the scope of application, was left to address one of the basic fault lines of the conference. By 1977 the wars of ‘national liberation’ in the Portuguese Above: Combatants patrolling the city of Mogadishu, Somalia. Photo: © CICR, Francois de Sury

IHL magazine 21 the Australian Defence Force and Australian Red Cross international humanitarian law relationship: interactions since the 1990s By Group Captain The Australian Defence Force Committee of the Victorian Division of Chris Hanna, Director and Australian Red Cross share Australian Red Cross. Like other ADF Operations and a vital interest in the promotion Legal Officers, I have found it to be an and protection of international International Law enduring connection. humanitarian law (IHL). We are indeed fortunate that a vibrant relationship, Australia’s obligations under Additional both formal and informal, involving a Protocol I to the Geneva Conventions Above: Participants at the March 2013 flow of discussion, advice and opinion (API) are pivotal to the relationship Red Cross IHL Course for the ADF: From on a range of IHL matters, exists between the ADF and Red Cross. In left to right: CPL Allan Ravenscroft, FLTLT between us. It is a relationship which I, particular, Article 83 of API addresses Darren Young, CAPT Adrian Sweatman and FLTLT Amanda Gloury as a very junior ADF Legal Officer, was the dissemination of the Geneva Photo: © Australian Red Cross initiated into in 1993 by joining the IHL Conventions and API. It provides that States Parties undertake, ‘in time of the tutelage of Ms Bev Patterson) and emblem. The Department of Defence peace as in time of armed conflict, to later as presenter on subjects such as administers Section 15 of the Geneva disseminate the Conventions and this the law applicable to targeting. Conventions Act 1957 (Cth) (the Act), Protocol as widely as possible in their The third area of interaction arises out as it is the Minister for Defence who must consent in writing to the use of respective countries’. This includes of Australian Red Cross participation ‘the study thereof in their programmes the red cross and related emblems. in the planning for and execution of of military instruction’. Australian Red Cross and Defence military exercises and operations. therefore regularly interact in relation During my time in the ADF, there have Members of Red Cross have attended to notifications of the misuse of a red been three major areas of interaction ADF planning conferences and cross emblem, and the authorisation between the ADF and Australian training exercises, provided training to use such emblems. Both Defence Red Cross on IHL matters. In one to ADF members, and been involved and Australian Red Cross take a way or another, these areas relate to in both exercises and operations constructive, educative approach to Australia’s obligations under Article 83. advising on Australian Red Cross A fourth area involves Australian Red managing potential breaches of the perspectives of IHL and other issues. Act. We routinely discuss specific Cross’ interaction with the Department In many cases, ICRC representatives of Defence as a whole and, in uses of images and logos that may provided guidance and leadership fall within the Act. These discussions particular, Australia’s obligations to to Australian Red Cross personnel. protect the red cross emblem. may lead to the provision of reports to My key experience with these ICRC/ the Minister for Defence on potential The first area of interaction is ADF Australian Red Cross teams was breaches of the Act. membership of Australian Red Cross during major ‘command post’ In conclusion, a positive working IHL committees at a national, as well exercises conducted out of the ADF relationship between the ADF and as at state and territory, level. ADF Warfare Centre in the late 1990s. In Australian Red Cross on IHL issues participation in these IHL committees these exercises, the ICRC/Australian is a useful and efficient method of facilitates regular engagement and Red Cross representatives added seeking to fulfil Australia’s obligations liaison, enhancing both parties’ depth and realism by replicating the under Protocol I. The challenge for understanding of IHL issues of mutual roles the ICRC might expect to play in future members of both the ADF and interest and responsibility. With the a major conflict, including in respect Australian Red Cross will be to find ADF posting cycle, I have now served to prisoners of war and the protection on three separate state/territory new opportunities as they arise to of the civilian population. maintain and enhance the strength IHL committees and in my current The fourth area of interaction of the relationship to promote and role routinely attend the national relates to the use of the red cross protect IHL. committee meetings. Each was different, but each was marked by a Australian Red Cross common passion and enthusiasm of its members for IHL. The second area of interaction is ADF international humanitarian involvement in both the receipt and delivery of IHL training conducted by Australian Red Cross. This includes law relationship: the flagship ‘Australian Red Cross IHL Course for the ADF’ which is interactions since the 1990s conducted in various locations around Australia, which ADF members attend both as students and presenters. This course is an important supplement to the training that the ADF provides to its own members. In this context, ADF presenters, who are often Legal Officers, will bring a military perspective to the interpretation and application of IHL. As an ADF Legal Officer, I have been on both sides of the fence, first as student on an Australian Red Cross IHL ‘Train-the- WA IHL Officer Viv Ryan teaches a group at HMAS Stirling, Western Australia. Trainers’ course (Class of ‘93 under Photo © Australian Red Cross

IHL magazine 23 Red Cross and landmines advocacy

By Professor William The Fundamental Principles of the internal political conflict. Culminating Maley, Director of International Red Cross and Red in the opening for signature in 1997 Asia-Pacific College of Crescent Movement have typically of the Convention on the Prohibition prevented it from engaging in forms of the Use, Stockpiling, Production Diplomacy, Australian of advocacy that could be seen as and Transfer of Anti-Personnel National University either strident or overtly partisan. Mines and on their Destruction This has historically been one of the (commonly known as the ‘Ottawa great strengths of the Movement, Treaty’), the campaign to which including its member National Red Cross contributed provides Societies. But, that said, one of powerful evidence of how mature, the most significant achievements expert advocacy can be used for of the Red Cross Movement, in the betterment of humanity. Three partnership with a number of like- particular areas of activity come to minded organisations, has been mind. the use of nuanced advocacy to encourage the development of rules First, the Red Cross Movement of international humanitarian law. One contributed to what scholars of the most striking recent examples call norm entrepreneurship. The relates to Red Cross Movement Ottawa Treaty was not a classic actions to address the problem of arms-control treaty, but rather a anti-personnel landmines across device for establishing a norm to numerous countries wracked by anathematise a particular weapon. Norm entrepreneurs, (Martha military leaders, including General Sir Finnemore and Kathryn Sikkink Hugh Beach, former Master-General argued in a famous article in 1998 in of the Ordnance of the British Army. the journal International Organization) They were also endorsed by a group ‘are critical for norm emergence of specialists, including this writer, because they call attention to issues at a conference organised by Red or even ‘create’ issues by using Cross in Manila in July 1997. Anti- language that names, interprets, personnel Landmines: Friend or Foe? and dramatizes them.’ The Red was widely distributed in Australia. Cross Movement was not alone in The military expertise distilled in the contributing to the development publication was augmented by legal of normative prohibitions on skills provided by the Red Cross landmines. The Canadian Foreign Movement. Dr Stuart Maslen played Minister, Lloyd Axworthy, played a a leading role in this respect, and it is critical role, as did the International not surprising that he then authored Campaign to Ban Landmines. The a study of the Ottawa Convention Red Cross Movement, however, was in the book series known as Oxford uniquely placed to make its own Commentaries on International Law. contribution, not only because it Australian IHL Officers pressed the was highly respected, but because legal case vigorously. many of its National Societies had Finally, the Red Cross Movement large networks of supporters who contributed very energetically to could be mobilised to press the the implementation of the Ottawa case for a mine ban. Indeed, there Treaty. The treaty came into effect is some evidence that the very first with remarkable speed, on 1 March people who sought to put the issue 1999, six months after the lodgment of anti-personnel mines on the of the 40th instrument of ratification. agenda of public discussion were By June 2014, there were no fewer landmines advocacy surgeons working for the International than 161 parties to the treaty. That Committee of the Red Cross who the treaty came into effect so swiftly had seen close up the horrendous was in no small measure due to consequences of landmine injuries for the advocacy of National Societies civilians. Australian Red Cross was that pressed their governments to particularly active in pressing the anti- move expeditiously to endorse the landmines case. new norm that the treaty embodied. Second, the Red Cross Movement Here, the Red Cross Movement’s was able to mobilise significant expertise was a very important asset. expertise to support the ban Regional delegations of the ICRC campaign. Of particular importance were able to share information to was the 1996 publication by the empower National Societies in parts of the world where the landmines ICRC of Anti-personnel Landmines: Top: Sarajevo. Implosion device set to destroy Friend or Foe?—A study of the problem had not loomed large so mines. © CICR/GRABHORN, Paul (1996) that they also could lobby their own military use and effectiveness of anti- Above: Child injured by landmine, Kompong Speu personnel mines, which forensically governments effectively. Hospital, Cambodia – long supported by Australian demolished a range of strategic and This case embodies a very important Red Cross Landmine Survivor Assistance Program. Red Cross Archival Image. tactical arguments for the retention lesson. The principle of Neutrality of such weapons. The principal is central to the work of the Red Top left: Adjusting a prosthesis, Juba, South Sudan, author was a retired British Brigadier, teaching hospital supported by ICRC. Cross Movement, but it does not bar © CICR/Heger, Boris (2006) Patrick Blagden, whose credentials engagement in principled advocacy Left: Poster from advocacy campaigns against as an expert were beyond reproach; on issues of humanitarian concern. anti-personnel landmines. Such weapons breach IHL and the findings were endorsed by On such issues, the Red Cross in that they cannot distinguish between combatants a range of eminent generals and Movement can and should be heard. and civilians. Red Cross Archival Image

IHL magazine 25 Australia’s road to ratification of the International Criminal Court By The Hon. David Harper, which followed World War II, and Assembly of the United Nations its Chair, Victorian IHL revived in 1989 when Trinidad and final draft statute for an International Committee Tobago proposed the creation of Criminal Court (ICC). In response, the a permanent international court to Assembly established the Ad Hoc It was indeed a close run thing. deal with the illegal drug trade. The Committee on the Establishment of Not that the idea was new. Gustave message struck a chord, and the an International Criminal Court. This Moynier, one of the Swiss founding International Law Commission (ILC) met twice in 1995, and its report members of the International recommenced its work on a draft was followed by the creation of Committee of the Red Cross (ICRC) statute. This was nearing completion another committee - the Preparatory had predicted that one may be when, in 1994, the horrors of Committee on the Establishment of needed, way back in the 1870s. Rwanda and the former Yugoslavia the ICC - to prepare a consolidated inspired the establishment of ad hoc The creation of an international court, draft text. Between 1996 and 1998, tribunals to try war crimes in both with jurisdiction over serious crimes six sessions of the Committee were regions. of an international character, was held. The ICRC was among the first seriously mooted after World Things then began to move with international organisations and NGOs War I. It was given further impetus relative speed. That year (1994), which made significant contributions by the Nuremberg and Tokyo trials the ILC presented, to the General to the Committee’s deliberations. The result was sufficiently positive for Government members to be held on put, with all the powers of persuasion the General Assembly to convene a Tuesday 18 June. which are uniquely his, the Australian conference in Rome in June 1998, Red Cross case in favour. As he was Tim McCormack and his colleagues with the aim of finalising a treaty. On speaking, the party meeting was were aware of the delicate balance 17 July 1998, the Rome Statute of in the Government’s ranks. But it being held. Twenty-six spoke for the International Criminal Court was was not a partisan issue. And Tim ratification; nineteen were opposed. adopted by a vote of 120 to 7, with was aware that a former Governor- Cabinet was won over. On 27 June 21 countries abstaining. It was to General, Sir Ninian Stephen, saw the a diplomat, Richard Rowe, was become binding when the number creation of the Court as important despatched to New York with the of ratifying countries reached 60. if the rule of law was to be given instrument of ratification in his This occurred on 11 April 2002; but international significance. Indeed, hand. He arrived within hours of the Australia was not a party. Tim knew Sir Ninian well enough deadline. Australia ratified the treaty A single step remained: the Statute to know how to contact him in on 30 June 2002. It was a (very) had yet to come legally into force. London (where Sir Ninian and Lady close run thing. The date was set – 1 July 2002. Only Stephen were then staying) and that offences committed after that date he would cast a sympathetic eye would be justiciable in the Court; and over a draft statement which Tim only those nations which had ratified had prepared. Sir Ninian might even before then would have any say in its put his name to a document based composition or in its rules. upon his own amended version of it. No endorsement could be more The Howard Government was having powerful. difficulty making up its mind. As early as October 1998, the Foreign It was late on a London evening Minister (Alexander Downer) and the on 16 June when the call was Attorney-General (Daryl Williams) put through. A copy of Tim’s had said that the creation of the draft reached Sir Ninian’s hotel. Court should be one of Australia’s Amendments were made. The highest priorities. Williams had since document was returned under Sir Australia’s road retired from politics, but Downer Ninian’s name, and delivered to the remained as Foreign Minister and Sydney Morning Herald and The Age. continued his strong advocacy for Its publication on Tuesday 18 June Above: Former Tasmanian staff Bridget Dunne and Australia’s ratification. On the other almost certainly tipped the scales; Madeline Summers working in The Hague. but it benefitted by a day of hectic Since the mid 1990s the IHL program has supplied hand, the Joint Standing Committee large numbers of Australian interns and volunteers on Treaties, with a Government activity by Tim McCormack. He gave to the ICC and other international tribunals. majority, was opposed, despite thirteen media interviews in which he Photo: Bridget Dunne having been addressed in Melbourne on 14 March 2001 by the Australian Red Cross Professor of International Humanitarian Law (Professor Tim McCormack), the Secretary General of the Australian Red Cross (Jim Carlton) and the Australian Red Cross National Manager of IHL (Helen Durham). Their message was that this was an issue for all humankind. The Committee, and especially its Chair, was unconvinced. However in 2002 a new chair, Julie Bishop, was in place providing new opportunities for engagement. The Prime Minister’s position was not known, but some of his strongest supporters were opposed. Cabinet was to meet on Monday 24 June, Above: Australia deposited its instrument of ratification of the Rome Statute of the with only seven days within which, International Criminal Court at the United Nations in New York in July 2002. Photo: DFAT if approval was given, to introduce Top left: Wide view of the Security Council as Luis Moreno-Ocampo briefs on the situation in the necessary legislation. Its position Darfur and ICC charges of genocide levied against Sudanese President Omar Al-Bashir, would be influenced by a meeting of New York, 9 December 2010. Photo: UN /Ryan Brown

IHL magazine 27 taking IHL off the bookshelf: dissemination in practice

By Emily Camins, Chair, For many people worldwide, war is a particularly among soldiers’. Over Western Australian IHL harsh daily reality. For the majority of the years, the important preventative Committee, with input the Australian population, war enters role of dissemination has come to our lives only peripherally: through the fore. International Committee of from members Alisdair news stories from afflicted countries; the Red Cross research shows that Putt and Harpal Ahluwalia through reports of Australian military societies which have experienced war and peace support operations on consider that the Geneva Conventions distant shores. One might then ask assist in maintaining humanity during why a program teaching people armed conflict. Even for countries not in Australia about the body of law directly affected by war, widespread that regulates armed conflict – understanding of the rules promotes international humanitarian law – was respect for the law, domestically and developed, and how the program internationally. enriches our society. An increase in armed conflicts in the The importance of educating people early 1990s, including the First Gulf about the laws of war has been War and hostilities in such countries acknowledged since the inception as the former Yugoslavia, Somalia of the International Committee of and Rwanda, brought into sharp the Red Cross. The final resolution relief the need to ensure respect of the 1869 Second International for IHL. With increasing military Conference of the Red Cross commitments overseas, in 1991 the

Quote on IHL by Nelson Mandela, on an stipulated that ‘Knowledge of the Australian Government ratified the Adelaide IHL volunteer’s T-shirt, 2010 Articles of the Geneva Convention 1977 Additional Protocols (API and Photo: © Australian Red Cross must be disseminated widely, APII). Like the Geneva Conventions, API requires states to educate the for the Department of Foreign Today, many parts of the Movement armed forces and civilian population Affairs and Trade on the delivery of worldwide draw on Australia’s IHL about IHL, and invites National Red Australia’s aid programs to Africa, program. Major James Backwell, Cross Societies to support this goal. she remains inspired by the ambition presently with the Australian Army The Australian Government bolstered and robustness of the Geneva Legal Corps, led the Australian Red existing dissemination efforts by Conventions. Like many others (the Cross IHL program in Victoria before funding Australian Red Cross IHL author included), Sally credits the becoming Legal Coordinator with Officers part-time in each Division. Australian Red Cross IHL program the ICRC delegation to Israel and the Today, Red Cross continues to share with having a profound effect on her Occupied and Autonomous Territories this ongoing duty with the Australian life and career. in 2001. In this role, Major Backwell Government. All National Societies, including used the Australian Red Cross IHL dissemination is a core Australian Australian Red Cross, are bound ADF Instructors’ Course manual to Red Cross function, with a total of 11 by the Movement’s Fundamental educate various groups including the staff dedicated to it, as well as active Principles in its dissemination work. Gaza Bar Association, Israeli Defence volunteer-based IHL Committees These Principles are of critical Force, Palestinian Red Crescent and and associated supporter groups. importance in guaranteeing the Magen David Adom. ‘The Australian Until recently, Red Cross funded a integrity and unique status of the red Red Cross IHL dissemination professorial Chair of IHL at Melbourne cross and red crescent emblems, program is one of the best of all University (a position held for 14 and the protective importance they the National Societies,’ says Major years by Professor Tim McCormack), bear for Red Cross delegates in the Backwell. ‘It continues to assist me in IHL which contributed to a proliferation in field. Australian Red Cross remains training all levels of ADF personnel in tertiary IHL subjects nationwide. The acutely aware that its words and their responsibilities under the Geneva ultimate purpose of dissemination actions in Australia could affect Conventions’. is to reduce suffering in armed perceptions of the Red Cross Education is a better guarantee of conflict by championing IHL to key Movement abroad, potentially respect for the rules of IHL than any groups including the Australian jeopardising the safety of personnel. sanction ever could be. Ultimately, it is bookshelf: Defence Force, Australian Federal Therefore the Australian Red Cross only by concerning ourselves with the Police, Commonwealth government IHL program must remain impartial plight of others that we, as members agencies, non-government and neutral, avoiding engaging in of the international community, can organisations, professionals, students disputes of a political or ideological help limit suffering in armed conflict, and the broader community. nature. regardless of where we live. While liaising with Australia’s military is part of the work, the importance of educating the civilian population cannot be overstated. To this end, the IHL program reaches out through a wide variety of publications and events - conferences, seminars and guest lectures, newsletters, training sessions for educators, mooting, essay and debating competitions and social events such as movie and quiz nights. For many, the IHL program represents an invaluable opportunity to remain engaged and informed about important, often confronting, global and humanitarian issues. It is vital to reach school and university students during their formative years. Sally Dawkins (nee Haak) attended the Perth Australian Red Cross Millennium IHL Conference as a schoolgirl. Deeply affected by Above: James Backwell, former ICRC delegate, addresses the Palestinian Bar Association, 2001 sessions about child soldiers, she Photo courtesy of James Backwell developed a close involvement with Top left: Life-size figures on St Kilda Beach, Melbourne 2006 – IHL’s national campaign reminding Australian Red Cross. Now working Australians of the plight of child soldiers as young as seven or eight. © Australian Red Cross

IHL magazine 29 the next 100 By Dr Carrie McDougall, representing the years Australian Capital Territory IHL Committee1

Most armed conflicts today bear Conventions, their Additional Of course, outstanding questions little resemblance to the ‘war to Protocols and customary international about the proper interpretation of end all wars’ of 1914. Asymmetric law still provide a suitable legal IHL still exist. The intensity threshold encounters between non-State armed framework for the regulation of the that must be met for armed violence groups and government armed forces conduct of parties to armed conflicts. to be classified as armed conflict; have become common. There has As the ICRC concluded in its Study the definition of ‘attack’ in the cyber been an increase of non-international on Strengthening Legal Protection for context; the applicability of IHL to armed conflicts (NIACs) with an Victims of Armed Conflict, the rules UN peace enforcement operations; extraterritorial element and NIACs are detailed, time-tested, and widely the implications of consent to that have become ‘internationalised’ accepted. humanitarian access being arbitrarily as a result of the intervention of Consistent with this view, States have denied; and the interaction between multinational forces. Prolonged and said that in almost all cases, what IHL and international human rights transformative occupations challenge is required is stricter compliance law, are just some of the issues that the IHL obligations of Occupying with IHL, rather than the adoption remain unsettled. Australian Red Powers. of new rules. To this end, the Cross is able to provide expert advice Twenty-first century conflicts are Swiss Government and the ICRC to inform the Australian Government’s frequently fought in densely populated are facilitating a process aimed at consideration of these issues. urban areas, with consequent strengthening IHL compliance by Sadly, there appears to be little implications for civilians. They are means of enhancing the effectiveness prospect of armed conflicts abating. marked by the failure of combatants of existing compliance mechanisms, As such, IHL will be as relevant in to clearly distinguish themselves and or possibly creating new ones, such the next 100 years as it has been the increased involvement of civilians as the convening of conferences in the past century. For this reason, in activities supporting combat. And of States Parties or the periodic the Australian Red Cross will have a while horrifying statistics about the reporting of States. critical role to play in promoting the harm inflicted by small arms and Efforts are also being made to dissemination and implementation of light weapons demonstrate that identify best practice guidance for rules aimed at limiting the devastating old technologies are as destructive IHL implementation. Examples of impact of war. as ever, new technologies such as processes already concluded are unmanned aerial vehicles, automated those that resulted in the ICRC’s weapons systems and cyber attacks Interpretive Guidance on the Notion are becoming increasingly prevalent, of Direct Participation in Hostilities with nanotechnology and lethal under IHL and the Handling of autonomous weapons looming on the Detainees in International Military horizon. Operations, also known as the The evolving nature of conflict has Copenhagen Process. Building resulted in increased humanitarian on the latter, the ICRC is currently needs, something exacerbated by the conducting consultations in relation all too frequent deliberate targeting to strengthening legal protections for of civilians. Against this backdrop, persons deprived of their liberty in humanitarian assistance has emerged NIAC. The threat of cyber warfare. © NATO as an issue of increasing concern, as Australia is playing an active role humanitarian organisations are denied in these processes. As Australia 1. Dr Carrie McDougall, BA (Hons), LLB (Hons), access, or are deliberately threatened develops its national positions, PhD is a Legal Specialist in the International Law or attacked. there will be an opportunity for Section of the Department of Foreign Affairs and Trade (DFAT). This article was written in A majority of States have consistently Australian Red Cross’ voice to be a personal capacity and does not necessarily expressed the view that the Geneva heard and considered. reflect the views of DFAT. International Humanitarian Law (IHL) Program

Australian Red Cross is part of the International Red Cross and Red Crescent Movement, the largest humanitarian network in the world.

IHL is something Red Cross thinks everyone should be aware of. We run an IHL Program providing training and education highlighting IHL issues to key target groups identified as having a role to play in situations of armed conflict.

The IHL Program focuses on the following target groups: • Australian Defence Force • Australian Federal Police • Non-government organisations • Commonwealth Government agencies • Key professions (law, medicine, journalism) • Tertiary and secondary education sectors • Wider community Red Cross has a mandate to promote an understanding of, and respect for, the law The IHL Program specifically offers training programs to in times of armed conflict – international sectors of the Australian Defence Force such as medical humanitarian law (IHL). personnel and military police, in addition to being invited to participate in Australian Defence Force training exercises. More broadly, we run education seminars for members of

the general community who have an interest in humanitarian IHL brochures and posters on issues and whose work is affected by the application of IHL. display stand in Humanitarian Village, Sydney, November 2013 For more information on the IHL Program visit: www.redcross.org.au/ihl © Australian Red Cross

fundamental principles In all activities our volunteers and staff are guided by the Fundamental Principles of the Red Cross and Red Crescent Movement.

Humanity Neutrality The International Red Cross and In order to continue to enjoy the Red Crescent Movement, born of confidence of all, the Movement a desire to bring assistance without may not take sides in hostilities discrimination to the wounded or engage at any time in on the battlefield, endeavours, controversies of a political, racial, in its international and national religious or ideological nature. capacity, to prevent and alleviate human suffering wherever it may Independence be found. Its purpose is to protect The Movement is independent. life and health and ensure respect The National Societies, while auxiliaries in the humanitarian Catatumbo Mountains, Colombia. Fighters being taught for the human being. It promotes international humanitarian law. Photo: ICRC/Boris Heger mutual understanding, friendship, services of their governments co-operation and lasting peace and subject to the laws of their Unity amongst all people. respective countries, must always There can be only one Red Cross or Red maintain their autonomy so that Crescent Society in any one country. It The threat of cyber warfare. © NATO Impartiality they may be able at all times to act must be open to all. It must carry on its It makes no discrimination as to in accordance with the principles humanitarian work throughout its territory. nationality, race, religious beliefs, of the Movement. class or political opinions. It Universality endeavours to relieve the suffering Voluntary Service The International Red Cross and Red Crescent of individuals, being guided solely by It is a voluntary relief movement not Movement, in which all Societies have equal their needs, and to give priority to prompted in any manner by desire status and share equal responsibilities and the most urgent cases of distress. for gain. duties in helping each other, is worldwide. National Office Queensland Western Australia 155 Pelham Street 49 Park Road 110 Goderich Street Carlton VIC 3053 Milton QLD 4064 East Perth WA 6004 Tel 03 9345 1800 Tel 07 3367 7222 Tel 08 9225 8888 Red Cross goods being delivered to the Australiantrenches, Capital World Territory War 1 Photo: SouthAWM Australia Red CrossAustralian House Hospital Ship Centaur,212 with Pirie St 3 Dann Closeprominent red cross markings, AdelaideSydney SA 5000 Garran ACT1943 2605 Photo: AWM Tel 08 8100 4500 Tel 02 6234Australian 7600 delegate Dorsa Nazemi-Salman, working with ICRC, meets with community New Southgroups Wales in Afghanistan. © AustralianTasmania Red St AndrewsCross House 40 Melville Street Level 4, 464An IHL Kent Officer St from Australian HobartRed Cross TAS 7000 General enquiries 1 800 246 850 Sydney NSWtalks to2000 Australian Defence ForceTel personnel 03 6235 6077 Mailing address Tel 02 9229at HMAS 4111 Stirling, WA © Australian Red PO Box 196 Cross Carlton South Northern Territory Victoria VIC 3053 Cnr Lambell Terrace 23-47 Villiers Street 1 800 811 700 and Schultz Street North Melbourne Donations Larrakeyah NT 0820 VIC 3051 First Aid enquiries 1 300 367 428 Tel 08 8924 3900 Tel 03 8327 7700 Blood Donor enquiries 13 14 95

Editors Sub-Editor Designer Bev Patterson Annabel McConnachie Elizabeth Cook Julia Hartelius

This edition of the IHL Magazine was generously supported by a History Grant from the Department of Arts & Museums, Northern Territory Government.

Cover photo credits Top: An IHL Officer from Australian Red Cross talks to Australian Defence Force personnel at HMAS Stirling, WA © Australian Red Cross Middle left: Red Cross goods being delivered to the trenches, World War 1 Photo: AWM Middle right: Australian delegate Dorsa Nazemi-Salman, working with ICRC, meets with community groups in Afghanistan. © Australian Red Cross Bottom: Australian Hospital Ship Centaur, with prominent red cross markings, Sydney 1943 Photo: AWM