The seminar discusses developing protection frameworks for situations short of armed conflict. Panelists include experts in international law from Harvard, Washington University in St. Louis, UNHCR, and Amnesty International. They will address what protections international human rights law, international humanitarian law, and international criminal law provide in such contexts. Topics include the conflict spectrum, accountability mechanisms, and doctrines like the Responsibility to Protect. The discussion aims to promote information exchange on contemporary challenges regarding civilian protection amid ongoing violence in places like Syria, Bahrain, and Kyrgyzstan.

24. Welcome to the 2011 IHL Forum Live Seminar Series Produced by the Program on Humanitarian Policy and Conflict Research at Harvard University Welcoming over 500 registered participants from over 60 countries Bringing in guest speakers from around the world Purpose: To promote information exchange and discussion among humanitarian professionals regarding contemporary legal and policy challenges.

26. Poll no. 1: Group identity

33. Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University Countries in Upheaval: Developing a Protection Framework in Situations Short of Armed Conflict June 28, 2011

34. Hosts Countries in Upheaval: Developing a Protection Framework in Situations Short of Armed Conflict June 28, 2011 Live Web Seminar Ms. Naz Modirzadeh Associate Director Program on Humanitarian Policy and Conflict Research at Harvard University Mr. Dustin A. Lewis Program Associate Program on Humanitarian Policy and Conflict Research at Harvard University

35. Countries in Upheaval Countries in Upheaval: Developing a Protection Framework in Situations Short of Armed Conflict A range of states around the world continue to experience serious violence and social disruption without the situation qualifying as an armed conflict to which the framework of international humanitarian law would apply. Questions arise as to what international legal frameworks may apply for government and humanitarian professionals working to develop a protection strategy aimed at enhancing the security of the civilian population. Amid recent or ongoing violence in places such as Syria, Bahrain, and Kyrgyzstan, this Live Web Seminar will address the following questions: What protections does human rights law provide in such contexts? In what ways might international humanitarian law provide a relevant framework to consider? What accountability mechanisms and normative protections does international criminal law provide? What doctrines—such as Responsibility to Protect—provide a normative or operational framework to promote protection of civilians?

36. Panelists Panelists John Cerone New England Law | Boston Leila Sadat Washington University in St. Louis School of Law Vincent Cochetel Office of the UN High Commissioner for Refugees Sam Zarifi Amnesty International

37. Professor John Cerone John Ceroneis the Director of the Center for International Law and Policy and Professor of Law at New England Law | Boston. Professor Cerone teaches Public International Law, Human Rights Law, Constitutional Law, and International Criminal Law. He has been a fellow at the Max Planck Institute for Comparative Public Law and International Law and a visiting scholar at the International Criminal Court. He has also been a Fulbright scholar at both the Danish Institute for Human Rights and the Tokyo University of Foreign Studies. Professor Cerone has served as a legal advisor to international criminal courts and tribunals, as well as Special Advisor in the first US delegation to the UN Human Rights Council. He has taught courses and given guest lectures in various countries throughout the world. He received a B.S.E. from the Cooper Union for the Advancement of Science and Art, a J.D. from Notre Dame Law School, and an LL.M. New York University School of Law. He is the author of several articles and book chapters on international law, as well as the casebook Public International Law: Cases, Problems, and Texts (with Dinah Shelton and Stephen McCaffrey)

38. International Legal Frameworks Differences between International Human Rights Law, International Humanitarian Law, and International Criminal Law Conflict spectrum from peacetime to peacekeeping Peacetime Civil unrest / internal disturbances and tensions Internal or non-international armed conflict International armed conflict Peacekeeping The Case of Libya John Cerone

39. Professor Leila Sadat Professor Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law at Washington University School of Law and Director of the Whitney R. Harris World Law Institute. During Spring 2011 she was the Alexis de Tocqueville Distinguished Fulbright Chair at the University of Cergy-Pontoise in Paris. Prof. Sadat is the Director of the Crimes Against Humanity Initiative, a three-year project to study the problem of crimes against humanity and draft a comprehensive convention addressing their punishment and prevention, and an award-winning and prolific scholar with more than 75 articles and books to her name. Trained in both the French and American legal systems, Sadat brings a cosmopolitan perspective to her work. She is particularly well known for her expertise on the International Criminal Court. She was a delegate to the U.N. Preparatory Committee and to the 1998 Diplomatic Conference in Rome which established the ICC, represented the government of Timor-Leste at the 8th Session of the Assembly of States Parties to the Rome Statute of the ICC, and served as a delegate for the International Law Association, American Branch at the 2010 ICC Review Conference in Kampala, Uganda. From 2001-2003 she was a Commissioner on the U.S. Commission for International Religious Freedom. She currently serves as Vice-President of the International Law Association (American Branch) and the International Association of Penal Law (AIDP), and is a member of the American Law Institute. She has also served as a member of the Executive Council, Executive Committee, Program Committee and Awards Committee for the American Society of International Law and is the Book Review Editor for the American Journal of Comparative Law. Sadat received her B.A. from Douglass College, her J.D. from Tulane Law School (summa cum laude) and holds graduate degrees from Columbia University School of Law (LLM, summa cum laude) and the University of Paris I – Sorbonne (diplômed’étudesapprofondies).

42. The Proposed International Convention on the Prevention and Punishment of Crimes Against Humanityfills this gap Leila Sadat

43. THE INTERNATIONAL CRIMINAL COURT On July 17, 1998, a definition of crimes against humanity was included in the Rome Statute of the International Criminal Court, the adoption of which was a historic achievement. Leila Sadat

45. No enforceable duty to prevent

46. No State responsibility

47. No inter-state enforcement

48. No mutual legal assistance

49. No liability for legal entities

50. The Rome Statute does not bind non-State Parties

51. The Rome Statute is based on a vertical system of international criminal enforcementLeila Sadat

52. CRIMES AGAINST HUMANITY INITIATIVE STEERING COMMITTEE Prof. M. Cherif Bassiouni President, IHRLI Prof. Leila Sadat, Chair Director, Harris Institute Justice Richard Goldstone Former Chief Prosecutor, ICTY Prof. William Schabas National Univ. of Ireland Prof. Juan Méndez UN Special Rapporteur on Torture Judge Christine Van Den Wyngaert International Criminal Court Ambassador Hans Corell Former UN Under-Secretary General for Legal Affairs Leila Sadat

53. THE PROPOSED CONVENTION Preamble The States Parties to the present Convention, … Mindful of the millions of people, particularly women and children, who over the course of human history have been subjected to extermination, persecution, crimes of sexual violence, and other atrocities that have shocked the conscience of humanity, Emphasizing their commitment to spare the world community and their respective societies the recurrence of atrocities, by preventing the commission of crimes against humanity, and prosecuting and punishing the perpetrators of such crimes, … Have agreed as follows … Leila Sadat

54. THE PROPOSED CONVENTION Article 1 Nature of the Crime Crimes against humanity, whether committed in time of armed conflict or in time of peace, constitute crimes under international law for which there is individual criminal responsibility. In addition, States may be held responsible for crimes against humanity pursuant to principles of State responsibility for internationally wrongful acts. Leila Sadat

56. Adopts the Rome Statute definition of crimes against humanity

57. Provides a horizontal enforcement mechanism

58. Builds upon four pillars:

59. Normative foundations

60. Prevention

61. Punishment

62. Capacity BuildingLeila Sadat

63. Leila Sadat

64. Vincent Cochetel Vincent Cochetelis the United Nations High Commissioner for Refugees’ Regional Representative, for the United States and the Caribbean, based in Washington, D.C. Mr.Cochetel joined UNHCR in 1986, initially working as a legal/protection officer in various duty stations, mainly in Eastern and Western Europe. He subsequently managed UNHCR field offices in Central Europe, Eastern Europe and the Middle East. Mr.Cochetel participated in several emergency missions in Asia, West Africa, and Europe (North Caucasus). In September 2002, he was appointed at UNHCR Headquarters in Geneva as Head of the Investigation Unit of the Inspector General’s Office.In May 2005, he became Deputy Director of UNHCR’s Division of International Protection Services and Head of the Resettlement Service. Before joining UNHCR, Mr.Cochetel worked for two years with the European Commission of the European Communities and then for the European Court of Human Rights.Mr.Cochetel has written articles on numerous refugee issues and contributed to the drafting of several UNHCR training manuals related to staff safety, emergency management, protection, and durable solutions. Mr.Cochetel graduated from the Law Faculty of Tours (France), Paris II and Paris XI universities.

65. Presentation forthe HPCR (Harvard University) Web Seminar, 28 July 2011 Vincent Cochetel (UNHCR Washington)

66. I. Selected Legal Challenges in developing a protection framework in situations short of Armed Conflict Statutory limitations Mandate limitations Ad-hoc decisions from UNSC, UNGA, ECOSOC The creation of the ERC (1997) The outcomes of the 2005 humanitarian reform in the UN Vincent Cochetel, UNHCR

67. Article 9 of UNHCR Statute ECOSOC resolution and UNGA res. 2956 (1972) UNGA requests (e.g. 48/116) (1993) UNSG requests (e.g. Former Yugoslavia November 1991) Ad-hoc agreements (e.g. Annex VII Dayton Peace Accord in 1995) Specific requests of Governments (sometimes formalized in bilateral agreement) Requests from our Governing Board (e.g. ExCom Conclusion No.75 (XLV) (1994) Vincent Cochetel, UNHCR

68. The Kampala Convention Preamble Article 3.1.j and Article 5 (Obligations of States) Article 6 (Obligations relating to International Organizations & Humanitarian Agencies) Vincent Cochetel, UNHCR

69. II. Selected Policy Challenges Vincent Cochetel, UNHCR

70. Developing a protection framework within the IASC What is protection? An objective A legal responsibility A set of activities Vincent Cochetel, UNHCR

71. Protection activities may include: Responsive actions Remedial actions Environment-building Vincent Cochetel, UNHCR

72. Coordination Challenges (Policy level) The progress made through the Cluster Approach Process limitations: a process based on some “constructive ambiguity” in the design and depending on the leadership of the HC Vincent Cochetel, UNHCR

73. III Selected Operational Challenges Vincent Cochetel, UNHCR

74. A shrinking humanitarian space Effective coordination requires participation of all key stakeholders and a commitment to use HR reporting mechanisms The specific nature of some current situations of violence Safety of aid workers and the definition of acceptable thresholds Vincent Cochetel, UNHCR

75. Direct provision of protection services The value of “protection by presence” Provision through partners/proxies by remote Related accountability issues Vincent Cochetel, UNHCR

76. Operational Challenges related to core principles of humanitarian action Do not harm (action/inaction) The definition of “humanitarian imperatives” Impartiality Independence Neutrality Vincent Cochetel, UNHCR

77. Thank you for your attention Vincent Cochetel, UNHCR

78. Recommended readings Inter-Agency IDP Protection Handbook and Handbook for Humanitarian Coordinators available at http://www.humanitarianinfo.org/iasc/ “Refugees, internally displaced persons and the responsibility to protect”. Research Paper No.185, Dr. Susan Rimmer, March 2010 available at http://www.unhcr.org/4b97b0909.html Vincent Cochetel, UNHCR

79. Sam Zarifi Sam Zarifi is Amnesty International's Asia-Pacific Director. Prior to joining AI in 2008, he was with Human Rights Watch for eight years, where he served as the Asia Deputy Director and later as the Washington Advocate, covering the Middle East, Africa and Asia. He has conducted research missions focusing on conflict situations in Afghanistan, Iraq, the Philippines, and Nepal, and has worked on conflict conditions in a number of Asian countries, including India, Indonesia, Pakistan, Sri Lanka, and Thailand. He was born and raised in Iran. He received a Bachelor of Arts degree and a Juris Doctor degree from Cornell University, and an LL.M. in International Law from NYU School of Law. He practiced law as a corporate litigator in Los Angeles before serving as Senior Research Fellow at the International Law faculty of Erasmus University Rotterdam, where he was co-editor (with Prof. Menno Kamminga) of Liability of Multinational Corporations under International Law (Kluwer 2000) and several articles on corporate responsibility.

80. UN Human Rights CouncilGENERAL COMMENT NO. 29, STATES OF EMERGENCY (ARTICLE 4), 31 August 2001 Before a State moves to invoke article 4, two fundamental conditions must bemet: 1> the situation must amount to a public emergency which threatens the life of the nation, and 2> the State party must have officially proclaimed a state of emergency. The Covenant requires that even during an armed conflictmeasures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. UNHRC General Comment 29 Sam Zarifi

81. UNHRCGC 29 re: ICCPR Article 4 13. In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below. (a) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although this right, prescribed in article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person. UNHRC General Comment 29, Art. 4 Sam Zarifi

82. UNHRCGC 29 re: ICCPR Article 4 Paragraph 16: As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. UNHRC General Comment 29, Art. Sam Zarifi

83. ICCPR Article 6 Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprivedof his life. During an armed conflict, the assumption is that a deprivation of life, if consistent with IHL, is not arbitrary. UNHRC General Comment 6 1982 re: ICCPR Article 6 (Right to Life) Paragraph 2: … The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life…. Paragraph 3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. UNHRC General Comment 29, Art. 6 Sam Zarifi

84. India Map Sam Zarifi

85. Thailand Map Sam Zarifi

86. Questions and Comments Questions and comments

87. Panelists Panelists John Cerone New England Law | Boston Leila Sadat Washington University in St. Louis School of Law Vincent Cochetel Office of the UN High Commissioner for Refugees Sam Zarifi Amnesty International

88. Production Team HostsNaz Modirzadeh & Dustin A. Lewis ProducerElizabeth Holland Technical DirectorJames BrockmanProduction TeamChristina Blunt& AnaïdeNahikian

89. The Live Seminars on Humanitarian Law and Policy are produced by: Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University Sponsored by: For more information on the Humanitarian Law and Policy Forum, please visit: http://ihlforum.ning.com or http://twitter.com/hpcr or contact: ihlforum@hpcr.org