PHAP Online Learning Series on Humanitarian Law and Policy – Qualification of Situations: case studies from recent practice
On 21 July, PHAP organized an online learning session on the qualification of situations. Following on our introductory session on this topic, we looked at two case studies from Ukraine and Syria, which illustrate both the importance of carrying out a qualification assessment and the complexity involved in such an assessment. The case studies were presented by two guest experts: Sareta Ashraph, Chief Analyst on the UN Commission of Inquiry on the Syrian Arab Republic, and Laurie Blank, Clinical Professor of Law and the Director of the International Humanitarian Law Clinic at Emory University School of Law.
Session recording (Adobe Connect - higher quality)
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Session recording (downloadable audio podcast)
Qualifying the armed conflicts in Syria and the Ukraine is an important but potentially complicated exercise. Determining whether a situation encompasses an international armed conflict (including occupation), non-international armed conflict, or possibly both simultaneously, is valuable for a number of reasons. For instance, the rules related to conduct of hostilities, detention and humanitarian access vary depending on whether a situation is an international armed conflict (including occupation) or non-international armed conflict. Though the fundamental principles of IHL apply to the categories, the specific rules applicable to each vary. As a result, it is important for actors operating in a conflict setting to have a clear understanding of the qualification of the context so that they are able to engage in an informed and credible discussion with parties to the conflict, key stakeholders and other interested parties. It is a question that a variety of actors will address – states, militaries, courts and tribunals, international organizations and humanitarian NGOs. Possessing an understanding of the qualification of a situation contributes to establishing a shared basis for discussion and engagement as to the rules and principles that regulate rights and responsibilities during armed conflict.
To undertake a qualification assessment it is necessary to have a clear understanding of the factual context as well as the relevant legal framework. This session will provide a brief overview of the factual predicate for both Syria and the Ukraine, which will inform a legal analysis of each context. Syria and the Ukraine present opportunities to engage on a number of challenging elements related to qualification, including the following questions:
- When does a situation become an international or non-international armed conflict? What was the threshold for such a determination in Syria and the Ukraine?
- When does a situation become an occupation? What does it mean for such a qualification if there are ongoing, but intermittent, hostilities?
- When does a situation encompass both an international and non-international armed conflict? What are the practical consequences of such a determination?
- When a situation evolves quickly, who makes qualification determinations, and what is the utility of such an exercise?
- Understanding of how to undertake qualification analysis
- Familiarity with relevant treaty terminology and rules regarding qualification
- Awareness of criteria helpful in determining conflict threshold
- Ability to analyze straightforward and complicated scenarios, including those developing rapidly
- Appreciation of practical utility and relevance of qualification framework
Humanitarian practitioners as well as others with a professional or general interest in humanitarian action in situations of armed conflict.
For participants wishing to prepare in advance for the event, we recommend the following sources:
- Lawfare Blog, The War in Syria and LOAC: Some Key Issues (series of posts by Robert Chesney, Daniel Cahen, Kevin Jon Heller and Gabor Rona) (2012)
- Chatham House, Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya (2014)
- IntLawGrrls Blog, Noelle Quenivet, Trying to Classify the Conflict in Eastern Ukraine (2014)
- Lawfare Blog, Ashley Deeks, Is (or Was) Ukraine in a Non-International Armed Conflict? (2014)
PHAP members will have the possibility to undergo a two-part assessment after the session as part of the PHAP Continuous Learning Credits framework.
To encourage peer learning among members, selected essay responses will also be published on the website, if approved by the writer. As a member, you can comment on the responses and read other members' comments.
Sareta Ashraph has been the Chief Analyst on the UN Commission of Inquiry on the Syrian Arab Republic since May 2012, investigating and reporting on violations of international law in the context of ongoing events in Syria. Immediately prior to this, she occupied the same position on the United Nations' International Commission of Inquiry on Libya, examining violations of international law by the pro-Qadhafi forces, the anti-Qadhafi armed groups and NATO. Previously in 2010 and 2011, Ms. Ashraph was based in the Hague as the Legal Adviser to the Office of the Public Counsel for the Defence (OPCD) in the International Criminal Court, working on the Kenya and Central African Republic cases. In 2009, she worked as a Legal Consultant to the United Nations Fact-Finding Mission on the Gaza Conflict, also known as the Goldstone Inquiry, and was part of the team that conducted investigations and drafted the final Report. From 2004 to 2009, Ms. Ashraph was based in Freetown, Sierra Leone where she was Co-Counsel on the Defense team representing Issa Sesay (the former interim Leader of the Revolutionary United Front) before the Special Court for Sierra Leone. Ms. Ashraaph is a member of the Board of the Iran Human Rights Documentation Center and on the roster of defense legal consultants to the Extraordinary Chambers in the Courts of Cambodia (the Khmer Rouge trials) and the Special Tribunal for Lebanon. Ms. Ashraph completed her LL.M at Harvard Law School in 2001. In 2013, she was ranked by Chambers and Partners (UK edition) as a Notable Practitioner in the field of international criminal law.
Laurie R. Blank is a Clinical Professor of Law and the Director of the International Humanitarian Law Clinic at Emory University School of Law, where she teaches the law of armed conflict and works directly with students to provide assistance to international tribunals, non-governmental organizations and law firms around the world on cutting edge issues in humanitarian law and human rights. Professor Blank is the co-author of International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War, a casebook on the law of war (with G. Noone, Aspen Publishing 2013). She is also the co-director of a multi-year project on military training programs in the law of war and the co-author of Law of War Training: Resources for Military and Civilian Leaders (USIP 2008, with G. Noone, second edition 2013). In addition, she is the series editor of the ICRC’s teaching supplements on IHL, a member of the American Bar Association’s Advisory Committee to the Standing Committee on Law and National Security, and a member of the Public Interest Law and Policy Group’s High Level Working Group on Piracy.
Consulting Expert on International Humanitarian Law, International Association of Professionals in Humanitarian Assistance and Protection (PHAP)
PHAP Credentialing Program
International Legal Frameworks for Humanitarian Action
In particular, the event will address segment 3.4 of the certification assessment outline.