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Handbook on International Humanitarian Law Mooting

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Australian Red Cross Handbook on International Humanitarian Law Mooting Australian Red Cross Handbook on IHL Mooting 2 Editors Dr Michael Crowley Senior Lecturer in Law at Edith Cowan University. Michael writes the International Humanitarian Law moot problem for the Hong Kong Red Cross and International Committee of the Red Cross (ICRC) Asia-Pacific IHL Moot and is a member of the Australian Red Cross International Humanitarian Law Advisory Committee in Western Australia. In 2012, Michael co-edited a similar publication, Introduction to International Humanitarian Law and IHL Moot in Asia-Pacific Region with Hong Kong Red Cross and the ICRC for law students in Asia. Fauve Kurnadi Legal Adviser – Academic and Private Sector Engagement in the International Humanitarian Law program at Australian Red Cross. With a view to promoting respect and understanding for the laws of war, Fauve has primary responsibility for the department’s engagement with academic circles, university students, private sector stakeholders and law firms within Australia. Editorial Consultant Professor Anthony Cassimatis Professor of International Law at the University of Queensland. Anthony has co-authored two books on legal advocacy and has been heavily involved in legal advocacy training, having served as the academic advisor to teams competing in the Philip C Jessup International Law Moot Court Competition over many years. Anthony is Chair of the Australian Red Cross International Humanitarian Law Advisory Committee in Queensland. The editors would like to thank our external reviewers, in particular Cover: View of destructions in downtown Homs, Syria - February 25, 2016. Jerome David Letts, Robert McLaughlin, and Sarah Williams, for their Sessini/Magnum Photos for ICRC expertise and advice throughout the editorial process. Part 01. ICRC/Jorge Perez Thanks also goes to Australian Red Cross IHL Research Volunteer Part 02. Printed copies of the Casebook Elena Ryan for her kind assistance on this project. How does law protect in war? Photo: ICRC Part 03. Photo: ICRC Disclaimer: The articles contained within represent the views of Part 04. Photo: CC BY-NC-ND / ICRC / the authors and not necessarily those of Australian Red Cross or Yongtao XIANG the departments or organisations they represent. However, we Part 05. Photo: Australia Red Cross/ have tried to give a broad and varied collection of views on IHL, Louise Cooper its strengths and weaknesses, and its application. Australian Red Cross Handbook on IHL Mooting 3 Table of Contents Preface 5 Meet our contributors 6 Abbreviations 11 Part 0I. The International Red Cross and Red Crescent Movement Chapter 1 What is the International Red Cross and Red Crescent 14 Movement? Jane Munro Chapter 2 IHL in Australia and the role of Australian Red Cross 17 Fauve Kurnadi Chapter 3 The Role of the International Committee of the Red Cross as 22 ‘Guardian of IHL’ Georgia Hinds Part 02. An Introduction to the Sources and Principles of IHL Chapter 4 The scope and application of international humanitarian law 27 Jonathan Crowe Chapter 5 Protected persons under international humanitarian law 31 Lara Pratt Chapter 6 Protected property under international humanitarian law 36 Tara Gutman Chapter 7 The conduct of hostilities 41 Chris Hanna Chapter 8 Implementation and enforcement of international 46 humanitarian law Geoff Skillen Part 03. IHL in Practice: Insights and Experiences from Australians working in IHL Chapter 9 Special Adviser on International Humanitarian Law to the 50 Prosecutor of the ICC Tim McCormack Chapter 10 The role of the First Assistant Secretary in the Office of 54 International Law John Reid Chapter 11 Practising public international law: The role and responsibility 57 of public international lawyers Catherine Drummond Australian Red Cross Handbook on IHL Mooting 4 Table of Contents continued Chapter 12 In the life of an Australian Red Cross IHL Adviser 61 Helen Stamp Chapter 13 In the life of an ICRC Regional Legal Adviser 64 Eve Massingham Chapter 14 International Criminal Trials 67 Kevin Parker Part 04. How to Prepare for an IHL Moot Chapter 15 Insights, Experiences and Challenges from the 72 2017 ALSA Winning Team Christopher Chiam and Veronica Sebesfi Chapter 16 Advocacy in mooting: Ethics 75 Roderick O’Brien Chapter 17 So you’ve decided to compete in an IHL moot: what now? 79 Emily Camins Chapter 18 Preparing written submissions 84 Angus Macinnis Chapter 19 Preparing for your day in court 88 Angus Macinnis Part 05. IHL in Focus Chapter 20 Sexual violence in armed conflict 92 Melanie O’Brien Chapter 21 Nuclear weapons 96 Tim Wright Chapter 22 Health care in danger 99 Jane Munro and Fauve Kurnadi Australian Red Cross Handbook on IHL Mooting 5 Preface War – and our attempts to regulate it – are as old as humanity itself. From the Ancient Greeks, to Mesopotamia, to the island nations of the Pacific, customary practices reflecting the principles of international humanitarian law (IHL) have existed for millennia. The last 150 years have seen the modern codification of these ideas. The catalyst for this was Henry Dunant – the founding father of the International Red Cross and Red Crescent Movement (Movement) – who in 1859 witnessed the aftermath of the Battle of Solferino. His subsequent efforts to reduce human suffering on the battlefield ultimately culminated in the adoption of the First Geneva Convention. We now of course have the four Geneva Conventions of 1949 and their three Additional Protocols, which today form the cornerstone of modern-day IHL. Whilst the laws remain unchanged, modern warfare is shifting at a rapid rate. Protracted armed conflicts continue to rage and cities are becoming battlefields, while technological advancements continue to change the nature of war itself. The laws themselves remain sound; however understanding and respect for the rights and obligations they prescribe is increasingly challenged. The unique mandate of the Movement to disseminate the laws of war, therefore, is more important today than ever before. That is why it is critical to engage with the next generation of future legal professionals. As part of this commitment, Australian Red Cross proudly co- hosts the annual IHL Moot Competition with the Australian Law Students’ Association and an annual IHL teaching symposium for IHL educators with a range of academic institutions. In addition, this Handbook has been created to assist law students in developing their skills and understanding of IHL and awareness of contemporary IHL issues. The Handbook provides a compendium of introductory readings on IHL. It includes chapters from some of Australia’s foremost IHL experts discussing the sources and principles of IHL, an insight into the personal and professional experiences of Australians working in the field, and a glimpse into a range of contemporary IHL issues. Finally, the Handbook includes tips, tricks and advice for students looking to compete in an IHL moot competition. I would like to express our gratitude to the many friends and supporters of the Australian Red Cross IHL program who have generously donated their time and expertise to this publication. Thank you for sharing our commitment to encourage Australian law students and their respective tertiary institutions to engage with IHL. To those reading this Handbook, I hope that it is a practical and accessible introduction to the laws of war, and that it might even inspire you to become part of the next generation of young Australian international humanitarian lawyers and policy makers. Yvette Zegenhagen National Manager - International Humanitarian Law Australian Red Cross Australian Red Cross Handbook on IHL Mooting 6 Meet our Contributors Emily Camins Jonathan Crowe Emily Camins is a PhD candidate at the University of Jonathan Crowe is Professor of Law at Bond University. Western Australia (UWA), where she is also a sessional His main research interests lie in the fields of legal lecturer and past unit coordinator in international philosophy, constitutional law and theory, international humanitarian law. Her PhD project examines the humanitarian law and dispute resolution. He is the potential right of individuals to obtain reparations author or editor of five books and more than seventy- for violations of IHL. Prior to joining academia, Emily five book chapters and journal articles on a range of worked as a solicitor at the State Solicitor’s Office legal and philosophical issues. His work has appeared in Western Australia and as the IHL Officer (WA) in numerous leading international and Australian at Australian Red Cross. She holds a BA/LLB (Hons) journals, including the Modern Law Review, the Oxford from UWA and a Graduate Diploma in International Journal of Legal Studies, the Melbourne University Law from the University of Melbourne. Emily is a Law Review, the Sydney Law Review, the Melbourne past Jessup Mooter and Coach, and past winner of Journal of International Law and the Australian Journal the IHL Moot at both UWA and the Australian Law of Legal Philosophy. He is the co-author of Jonathan Students’ Association Conference. She regularly judges Crowe and Kylie Weston-Scheuber, Principles of university mooting competitions. Emily has presented International Humanitarian Law (Edward Elgar, 2013) and published several papers on IHL, the most recent and a long-standing member of the Australian Red of which (entitled ‘Needs or Rights? Exploring the Cross IHL Advisory Committee in Queensland. limitations of individual reparations for violations of international
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