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Issue 1, 2014 magazine Australian Red Cross IHL and years 100 of

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International Humanitarian Law Magazine September 2014 Australian Red Cross

TRANSCRIPT

  • Issue 1, 2014

    magazine

    AustralianRed Cross

    IHLandyears

    100of

  • Welcome to this edition of the International Humanitarian Law Magazine, celebrating and reviewing 100 years of Australian Red Cross and international humanitarian law (IHL).

    The International Red Cross and Red Crescent Movement is inextricably linked the Geneva Conventions the international laws that set out the responsibilities and protections that apply during armed conflict. The Conventions establish the unique place of Red Cross and Red Crescent National Societies during times of armed conflict, entrusting them to perform all their duties pursuant to the Fundamental Principles, including Impartiality and Neutrality.

    Just like the International Committee of the Red Cross before it, Australian Red Cross was born out of war in August 1914, just nine days after the 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 initiating national tracing services, searching for the missing and sending news from the front to anxious families at home.

    Even today the presence of peace does not separate Australian Red Cross from armed conflict. Many clients in our Migration Support Programs come directly from its horrors. Today, instead of sending Voluntary Aides abroad to the front line, we have a thriving delegate program, with Australian Red Cross specialists heading to war-torn parts of the world. The Conventions also set the task of teaching the content and humanitarian values of IHL to military forces and to the broad civilian population. In Australia, the Government shares this important responsibility with Australian Red Cross.

    Red Cross and the Geneva Conventions truly live, breathe and stand together.

    It is fitting that the articles of this special Centenary IHL magazine are all contributed by Red Cross people from around Australia. We thank them for many years of commitment to the dissemination task, and are proud to publish their words, in acknowledgement of their distinct areas of expertise, experience and research.

    Follow their stories from across the decades - amongst others, from World War II and Vietnam, to the advent of the Additional Protocols in the 1970s and the International Criminal Court in 2002, to the landmark Australian Red Cross advocacy campaign against anti-personnel landmines in the 1990s.

    Please enjoy this testament to the work of international humanitarian law in times past. It fills us with confidence to see how Australian Red Cross has evolved over its 100 years to respond to the changing face of warfare. As we face arguably our greatest threat to humanity the continued existence of nuclear weapons we must continue to raise issues of critical humanitarian concern and disseminate the fundamental tenets of IHL to every corner of Australia and abroad via the Movement.

    The opportunity to pause and reflect on how far we have come in our 100 years is crucial in ensuring our continued success as we look to take on ever more pressing humanitarian challenges in the future.

    Inside this issue Editorial

    a century of war and peace: Australian Red Cross and the development of international humanitarian law by Professor Tim McCormack page 3

    the development of IHL since 1914 and the influence of World War I by Geoff Skillen page 6

    searching for news: World War I tracing by WGCDR Annie Trengove page 8

    when the Flying Red Dragon lashed Darwin by Dan Baschiera and Kyla Raby page 10

    the ICRC in Australia in World War II by Andrea Lunt page 12

    never again: prisoners of war under the Japanese by Julia Hartelius page 14

    a century of memories collage provided by the Queensland IHL Committee page 16

    the women of the Australian Red Cross Field Force in Vietnam by Dr Jennifer Mora and Julia Hartelius page 18

    negotiating the protocols: key IHL work of the 1970s by Dr Keith Suter page 20

    the Australian Defence Force and Australian Red Cross international humanitarian law relationship: interactions since the 1990s by GPCAPT Chris Hanna page 22

    Red Cross and landmines advocacy by Professor William Maley page 24

    Australias road to ratification of the International Criminal Court by The Hon. David Harper page 26

    taking IHL off the bookshelf: dissemination in practice by Emily Camins page 28

    the next 100 years by Dr Carrie McDougall page 30

    Disclaimer: the articles contained within represent the views of the authors and not necessarily those of Australian Red Cross.

    Robert Tickner Chief Executive Officer Australian Red Cross

    Michael Legge President Australian Red Cross

  • The British declaration of war on Germany on 4 August 1914 automatically implicated all of the Dominions, including Australia, Canada, New Zealand and South Africa. There was no sense of resentment in this country at having been dragged unwillingly into someone elses war. On the contrary, antipodean patriotism to the motherland was strong and young men from every colonised corner of our vast land rushed to enlist. This early twentieth century enthusiasm for Empire is unsurprising. All Australian states had experienced more than a century of British colonial rule before the outbreak of the Great War and a

    mere fourteen years of Federation had not dimmed allegiances.

    Australian Red Cross was established as a branch of the British Red Cross Society within days of Britains declaration of war. That this inauguration was necessitated by the outbreak of war was simultaneously lamentable but historically consistent - echoing as it did the birth of the International Committee of the Red Cross (ICRC) just 50 years prior in the aftermath of the Battle of Solferino. The ICRC was established in 1863 and, in the following year, the 1864 Geneva Convention was the first multilateral treaty to regulate the

    centurywar peace:

    aof and

    By Professor Tim McCormack, Foundation

    Australian Red Cross Chair of IHL at The

    University of Melbourne, 1996 - 2010

    IHL magazine 3

    Private John Simpson Kirkpatrick of the 3rd Field Ambulance working in Shrapnel Gully

    at Anzac Cove, with a wounded soldier on Duffy, his donkey. Photo: AWM

    and the development ofinternational humanitarian law

    Australian Red Cross

  • conduct of war on land. Australian Red Cross will always be precisely 50 years younger than the worlds foundation IHL treaty.

    When Lady Munro-Ferguson, wife of the then Governor General, wrote to her vice-regal spousal colleagues and called on lady mayoresses and wives of mayors everywhere to form Red Cross groups, her call was predominantly to women an inevitable concomitant of exclusively male enlistment to fight. Her focus was on what would now be considered a very narrow aspect of substantive IHL - the mobilisation of first aid skills as well as the provision of medical supplies to the frontline. That relatively narrow focus was entirely consistent with the focus of the ICRC in 1863 and undoubtedly helpful in launching the Australian chapter of what was by then an effective global volunteer movement. In the 100 years since, Australian Red Cross has developed many practical and significant programs all worthy of further analysis but my emphasis is on the development of IHL throughout this impressive century of humanitarian action.

    Australian Red Cross has a deserved reputation throughout the entire Red Cross world as a leading National

    LTCOL Edward Weary Dunlop, with LTCOL A.E. Coates, at the Nakom Paton Hospital for recovered prisoners of war, Thailand, September 1945. Photo: AWM

    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 (Australias ratification of the Rome Statute, the Oslo Cluster Munitions Convention, the UN Small Arms Transfer Treaty for example).

    I am often asked by visiting ICRC delegations to explain the level of interest in IHL in Australia: attendance levels at IHL-focused public events here are striking; many Australian law schools offer IHL courses and numerous research higher degree students working in the field; Australia has the highest per capita readership of the ICRCs flagship bi-monthly publication, the International Review of the Red Cross; both the ICRC Mission in Australia and Australian Red Cross enjoy a significant level of engagement with the ADF, and the ICRC is consistently laudatory of ADF implementation of IHL in military operations and of ADF transparency in its operational interactions with the ICRC. The significance of Australian Red Cross involvement in IHL has steadily developed in the last third of the organisations history since the adoption of the Two Additional Protocols to the Geneva Conventions and, subsequent to which, Australian Red Cross established its National IHL Advisory Committee, appointed IHL Officers and became much more engaged with the ADF.

    But developments over the previous three decades have been possible because they have built upon a

    Unlike many

    other nations

    with proud

    military histories,

    our wartime

    heroes who

    have become

    emblematic of

    cherished values

    are humanitarian

    figures: a

    stretcher-bearer

    from World War I,

    and a military

    physician from

    World War II.

  • solid foundation laid throughout the first six or seven decades of the organisations existence. It is worth reflecting on this nations iconic figures from the two world wars. Unlike many other nations with proud military histories, our wartime heroes who have become emblematic of cherished values are humanitarian figures: a stretcher-bearer from World War I, Private John Simpson and his donkey, carting wounded Allied combatants down the exposed escarpments of the Dardenelles to the beach for medical treatment or evacuation; a military physician from World War II, Edward Weary Dunlop, himself a prisoner of war subject to brutal treatment at the hands of his Japanese captors on the Thai-Burma Railway but deeply committed to keeping as many of his fellow-captives alive throughout their ordeal. Perhaps there is something in our national psyche that admires human compassion even in wartime and predisposes us to interest in

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

    the concept of IHL the legal regulation of war to alleviate human suffering. Even in more contemporary military operations our standout national military hero was (the then Major General) Peter Cosgrove in his capacity as Commanding Officer of INTERFET the ADF-led multilateral humanitarian intervention in East Timor tasked with stopping atrocities against the civilian population.

    The involvement of Australian Red Cross in IHL, from the inception of the organisation right through to the celebration of its centenary, is a feature that distinguishes us from other humanitarian relief agencies. In 2064, when the 1864 Geneva Convention marks its bi-centenary and Australian Red Cross its sesquicentenary, I trust the contribution to the development of IHL will only have grown in significance.

    IHL magazine 5

    When Lady

    Munro-Ferguson

    called on lady

    mayoresses and

    wives of mayors

    everywhere to

    form Red Cross

    groups, her call

    was predominantly

    to women

    an inevitable

    concomitant of

    exclusively male

    enlistment to fight.

  • This is the intertwining story of Red Cross and IHL practical response to need, and legal efforts to increase protections in war developing in parallel, over 100 years.

    During World War I, poisonous gases were used with devastating effect by both sides, starting with their use by Germany against French troops in April 1915. They floated silently and invisibly across the trenches, and even brooded deeply in bomb craters. Standard issue gas masks were often ineffective in offering full protection. While countermeasures were devised against the types of gases initially used, by the wars end gas had resulted in huge numbers of casualties, notably those of Russia on the eastern front. The First Hague Peace Conference in 1899 adopted a declaration concerning asphyxiating gases, where parties agreed to

    abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases. But in most cases the gas used was not delivered by projectiles, but was simply released, in the expectation that prevailing winds would carry it to enemy lines.

    The 1907 Hague Convention on Land Warfare prohibited the employment of poison or poisoned weapons. In February 1918 the ICRC issued an appeal to the warring parties, noting this prohibition, and concluding that asphyxiant or poisonous gases are without any doubt one of the poisons forbidden under the Convention.

    In 1925, a conference held in Geneva under the auspices of the League of Nations adopted a protocol prohibiting the use of these types of gases and bacteriological methods of warfare. Australia ratified this

    development of IHLthe

    By Geoff Skillen, Chair, National IHL Committee

    Australian Red Cross centenary is also the centenary of the outbreak of World War I. The initial goal was to care for sick and wounded soldiers, to support their dependents and to assist overseas civilians caught up in war. Little could the new Red Cross branch have grasped the horrors the next four years would bring, with new means of warfare unleashed and a generation of young Australians devastated. By the 1920s, changes in international humanitarian law (IHL) in response to World War I were afoot.

    Above: A ward in the 2nd Australian Casualty Clearing Station near Steenvoorde, France,

    November 1917. Photo: AWM

    since 1914 and the influenceof World War I

  • instrument early, on 24 May 1930. The protocol has since been augmented by the Biological Weapons Convention of 1972 and the Chemical Weapons Convention of 1993.

    Post-war Australian Red Cross was fully involved in the care of returning sick and wounded soldiers, establishing convalescent homes, hostels and sanitoria, in agreements with the Department of Defence and Repatriation. A network of Anzac Hostels provided care for the totally and permanently incapacitated, such as amputees, nerve and shell shock cases. The effects of gas were especially horrendous, and death came cruelly, ultimately from chemical pneumonia and pulmonary edema. Valiant Red Cross Voluntary Aides nursing such patients night and day well learned the truth of Lady Munro-Fergusons words, Peace will not close the hospitals; the sick and wounded will be the last to demobilise; therefore Red Cross workers must be the last to quit their posts.

    While there are records of the use of 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 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 wars end, it had produced, together with France, 100,000 more. Germany produced 44,000.

    World War I clearly showed the potential for widespread destruction by aerial bombardment and led to the drafting

    of the Hague Rules of Air Warfare in 1923. However, the rules were never adopted in legally binding form. Still today no treaty specifically governs the conduct of warfare in the air, although aerial operations must comply with the cardinal principles of modern IHL - military necessity, distinction and proportionality.

    It can be argued that in World War I the principle that attackers must distinguish between combatants/civilians and between military objectives/civilian objects was less needed than in later conflicts, as proportionally there were far fewer civilian deaths. At the conclusion of the war there were an estimated 10 million combatant deaths compared to 6 million civilian deaths, and in fact most civilian fatalities were due to famine or disease, such as the

    Stretcher-bearers wearing gas masks in a French trench. In February 1918 ICRC launched an appeal against gas, which it referred to as a barbarous innovation

    which we can only describe as criminal. ICRC Library / RR

    IHL magazine 7

    Spanish flu, rather than directly from military action. Todays estimates are as high as ten civilian casualties to every one combatant.

    In 1914, it was understood that undefended, or open cities (so-called because defensive efforts had been abandoned), would not be bombed or otherwise attacked. Apart from this, there was nothing in the law governing armed conflict akin to the principle of distinction.

    There are striking differences in the law governing armed conflict today compared to IHL in 1914. The same may be said of Australian Red Cross. In 1914, it was focused on equipping and staffing military field hospitals. Today it is intimately involved in the development of the law, advocating for a more humane battlefield. Both Australian Red Cross and IHL have been dramatically transformed over the 100 years.

    development of IHLsince 1914 and the influence

    of World War I

  • Crescent networks in nearly 190 countries, is the only one of its kind in the world. Australian Red Cross has provided an unbroken service of tracing virtually since its inception, and this important work deserves to be highlighted as part of Australias early military history.

    From the outset of World War I casualties were high. By 1918 they were extraordinary. Of 416,809 Australians enlisted, 60,000 had been killed, and some 156,000 had been wounded, gassed or taken as POWs. Major Australian newspapers posted official casualty lists, but simple categories of missing, wounded or killed were dreadfully inadequate. At first, distressed Australian families had to contact the British Red Cross in Cairo for more information about their loved ones, before, in 1916, an Australian-designated operation was born.

    By Wing Commander Annie Trengove, representing the

    South Australian IHL Committee

    Provisions such as Articles 15-17 of Geneva Conventions I and II take account of this in situations of armed conflict. Parties are required to search for and collect the wounded and dead, to confirm their identities, often by military discs (colloquially dog-tags) and where possible to identify causes of death. In general, bodies should be buried, not cremated; graves must be mapped and marked. Similarly, the taking of prisoners of war (POWs) must be recorded through National Information Bureaux and information forwarded to next of kin as expeditiously as possible.

    The International Red Cross Tracing Service helps families separated by war, conflict, disaster and migration to search for the missing, re-establish contact by exchanging family news and where possible re-unite people. The International Tracing Service, working with Red Cross and Red

    It is often said that the hardest thing for humans to deal with is uncertainty. The plight of Malaysian Airlines Flight 370 served as a timely reminder of the deep-seated human need to know the fate of missing loved ones or at least the manner of death and location of remains. This human quest is common to all cultures.

    searching for news:

    Above: London, England. Women at work in the Index Card Department at the Prisoners of War Information Bureau, 1916. (Donor British

    Official Photograph BB6) Photo: AWM

    Top right: London, England. 1918. Studio portrait of Vera Deakin (later White) in her Red

    Cross uniform. Photo: AWM

    World War I tracing

  • Women played an important, although often underappreciated, role in the war effort. Vera Deakin, the daughter of Alfred Deakin (Australias second Prime Minister) was only 24 years of age when she and her friend Winifred Johnston volunteered to work for the Australian Branch of the British Red Cross. They began work in 1916, gaining experience from British and Canadian Red Cross tracing colleagues, then formed the Australian Red Cross Wounded and Missing Enquiry Bureau, initially in Cairo and then in London.

    Vera Deakins success lay in managing and mobilising a large body of volunteers to carry out Red Cross tracing investigations. Only a small number of searchers, as they were known, were paid. Their motivation was simply to remove all doubt for Australian families seeking the raw truth. Searchers interviewed soldiers on active service in the field, on leave or in hospital. They followed threads of stories and rumours, but ultimately sought eye-witness accounts. The exact circumstances of deaths and detailed physical descriptions of the soldiers in question were checked and re-checked before news was sent home.

    At times Miss Deakins relationship with the Army was sorely tested. 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 BatteryRBAct

    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 World War II were to haunt her soon enough. As Lady Vera White, Divisional Commandant and Honorary Director of the Enquiry Bureau, she was again to activate the tracing, message and POW work, taking charge of all such services to and from Occupied Europe from 1939 to 1946.

    The story of the Allen brothers, Robert and Stephen, shows the persistence of Australian Red Cross searchers. Both men were part of the 13th Battalion, but were listed as missing after an attack near Pozieres in August 1916. Desperate for news, the Allen family contacted Red Cross. After almost a year of compiling records and eye-witness accounts, Red Cross was able to confirm that the brothers had been killed in action. Although the ending to the story was tragic, Red Cross was able to help this Sydney family to find closure and begin to grieve.

    Australian Red Cross Wounded and Missing Enquiry Bureau

    Vera Deakin

    Top: Letter relating to Private Stephen Charles Allen and Private Robert Beattie Allen. Information from various

    sources confirmed the death of the Allen brothers. Sydney, May, 1917. Photo: AWM

    Above: Family portrait of the Allen family of Manly, NSW. August 1915. Photo: AWM

    (1891 1978)

  • The downed Japanese Mitsubishi Zero B11-1 on Melville Island, Northern

    Territory, 27 February 1942 Photo: AWM

    By Dan Baschiera and Kyla Raby, representing

    the Northern Territory IHL Committee

    Japanese Mitsubishi Zero fighter planes. Sergeant Hajime Toyoshima would probably have noticed his Zero rapidly losing pressure. By the time he approached the southern end of Melville Island, the largest of the two land masses that make up the Tiwi Islands, he would have known he could not make it back to the safety of the aircraft carrier Hiryu.

    Tiwi Islander Matthias Ulungura was out gathering bush tucker in his clan family hunting ground and saw the Zero in the distance, coming in low. Then he heard it crash-land, sliding along the mud flats just beyond the mangrove thicket.

    Remaining hidden, Matthias watched the Japanese airman escape the relatively intact aircraft, and followed him through the bush. Matthias became concerned when he realised that this strange-looking soldier was

    They watched while some planes peeled out of formation to shoot up the radio shack at the local mission. Father John McGrath rushed to send a warning to Darwin of an unusually large air formation bearing down on the islands. No-one in the big smoke appears to have paid any attention. Less that half an hour later, the first wave of a Japanese air strike hit the unsuspecting and somewhat sleepy port of Darwin.

    Despite the legal protection afforded by the rules of war, the clearly marked hospital ship AHS Manunda anchored in the harbour was hit, strafed with shrapnel and set ablaze. The medical quarters and navigational equipment were totally destroyed. Eleven of the ships crew were killed.

    Amidst the mayhem a .303 rifle bullet fired by an unknown defender found its mark in the oil tank of one of the

    Flying Red Dragon when the

    On 19 February 1942, our sunburnt country was attacked from the air for the first time in its history. The people of the Tiwi Islands, just eighty kilometres north of Darwin, were the first to see the Japanese Red Dragons of War flying overhead.

  • IHL magazine 11

    Ronald (Rocky) Tipungwuti, Red Cross Tiwi Islands staff member, grandson of Mattias Ulunguru and Red Cross Tiwi Islands staff member, stands with his family on the banks of Apsley Strait

    between Bathurst and Melville Islands. Photo: Dan Baschiera

    following the chatter of his wife and relatives sitting in a clearing nearby. Matthias watched, incredulous, as the soldier rushed at the women and seized his baby son Clarence as a hostage. There was no time to lose. Using every ounce of his bush skills Matthias snuck up silently on that Jap Man.

    Over seventy years later, in the cool shade of a sit-down tree on the beach of the Apsley Strait, we felt privileged to listen to Ronald (Rocky) Tipungwuti, grandson of Matthias, and a large group of Matthias descendants, proudly telling the story of their brave grandfather and great uncle. We were told how Matthias stuck the handle of his tomahawk into the back of the Jap Man. Using a line from the Western movie he had recently seen at the mission Matthias called out Stick em up: Im Hop-along Cassidy. Totally startled, Sergeant Toyoshima released the baby into the arms of its mother, Maria Asumpta. Matthias had just made history by capturing the first prisoner of war on Australian soil.

    Mattias Ulunguru, the war hero. Photo courtesy of Peter and Sheila Forrest, Darwin.

    long bum to eat; he now eat real bush tucker. Matthais did not give his adversary a drink because of any specific knowledge of international humanitarian law. His actions were simply a reflection of his care for someone needing food and water. Such is the very point of so many IHL provisions. They are not about complex legal obligations but the essence of common humanity.

    After an overnight walk to the mission, and help from two male cousins, Matthias handed his prisoner over to RAAF personnel. Later, he was able to lead Australian aircraft experts back to Toyoshimas wrecked plane. It was the first time that the Allies were able to examine a Zero, the remarkably efficient aircraft which had dominated the skies over Pearl Harbour and which now posed a very real threat to Australia.

    This is the little known story of an indigenous man, out gathering food for his family, who captured the first enemy soldier on Australian soil in World War II. For his part, Toyoshima was duly registered as a prisoner of

    war by the International Committee of the Red Cross and transferred to Cowra, NSW. He died in August 1944 during the POW escape attempt known as the Cowra Breakout of which he was an instigator.

    lashed DarwinUnbeknown 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, he give that Jap Man spring water to drink with periwinkle, mussel and

  • The National Security Act 1939: the government was empowered to control nationals of countries at war with Australia and to set regulations about their treatment.

    By Andrea Lunt, representing the ICRC

    Mission in Australia

    Its a little known fact that World War II internment camps operated in all Australian states, and in places as remote as Rottnest Island. The camps were to detain residents collectively considered a threat to national security, to appease public sentiment against enemy aliens and to house thousands of overseas internees, including prisoners of war (POWs), sent from overseas to Australia. The number of internees peaked in 1942 - approximately 7,000 foreign residents of Australia, and a further 8,000 internees sent here after being detained as far away as Britain and the Middle East. The legal basis for Australias wartime internment policy was the National Security Act 1939. Under this Act the government was empowered to control nationals of countries at war with Australia and to set regulations about their treatment. While indefinite

    internment of enemy aliens was initially to be an exceptional practice, in time it became more generally applied. After Japan entered the war in 1941, Japanese nationals in Australia were detained en masse.

    During World War II the International Committee of the Red Cross (ICRC) visited internment camps across most warring nations to monitor the treatment of those held captive and to improve conditions of detention. In 1940, following increasing transfers of POWs and civilian internees from Britain to Australian camps, the ICRC decided an Australian-based delegation was necessary. While Australian Red Cross led in many areas of humanitarian response including running Bureaux for Wounded, Missing and Prisoners of War in each state it was the ICRCs responsibility to visit the Australian camps because of its mandate under the Geneva Conventions.

    After months of negotiation with the Australian government, the ICRCs proposal for a local delegation was

    ICRC in Australia the

    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

  • IHL magazine 13

    Prisoners held in Cowra POW Camp A, New South Wales, September 1942. ICRC Delegate, Dr George Morel, is seated second from right. Photo: CICR

    accepted in early 1941. In line with its impartiality, the delegations key concern was the protection of all POWs and civilian internees in Australia, regardless of race, political affiliation or religion. Australia hosted three ICRC representatives during the war, the longest-serving being Dr Georges Guillaume Morel, a doctor of economics. Dr Morel was to encounter diverse populations inside the camps - including crews of merchant ships captured in Australian waters, Jewish refugees who had been living in Britain to escape Nazi persecution and Australian residents of German, Japanese and Italian backgrounds.

    At the outbreak of World War II, despite nearly two decades of ICRC effort, there was no international convention covering the treatment of interned civilians. A draft convention of 40 articles had been approved by the International Conference of the Red Cross in Tokyo in 1934, but finalisation of this Tokyo Draft had

    from German POWs in Australia. The cable refuted reports that German POWs in Australia had been prevented from receiving packages and requested ICRC make immediate representations to German authorities to rectify the situation.

    In a Sydney Morning Herald report in March 1944, Dr Morel wrote of the activities of the Red Cross in wartime, saying they were a tribute to our civilisation and a token of our spiritual maturity. While the Red Cross indeed brought the light of humanity to many during the war, there were countless others it was unable to assist. World War IIs horrors, in particular the genocide of inmates in Nazi death camps, highlighted the urgent need for an international agreement protecting civilians in wartime. Fifteen years after the initial Tokyo Draft, the international community finally agreed to the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, a treaty signed by Australia in January 1950.

    in World War IIbeen 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 POWs as reprisal for non-receipt letters

    Today, the ICRC continues to work with the Australian government on the development of law to protect detainees in situations of armed conflict. The ICRC is leading a major consultation process with States, including Australia, on how to strengthen legal protection for persons deprived of their liberty in relation to non-international armed conflict. In comparison to international armed conflict such protection is very limited.

    The Strengthening International Humanitarian Law Project aims to bolster the law in four key areas: the grounds and procedures for internment, conditions of detention, protection for especially vulnerable groups of detainees and transfers of detainees from one authority to another. Such consultations will inform a report setting out recommendations to be considered by the International Conference of the Red Cross and Red Crescent in 2015.ICRC in Australia

  • In reviewing 100 years of IHL and Australian Red Cross, it would be disingenuous, even dishonest, not to acknowledge how difficult it is to provide adequate protection when Parties to the conflict are either unwilling or unable to support our work. Certainly the prisoners of war held by the Japanese during World War II were one group the Red Cross was mostly unable to reach. In all, some 22,000 Australian service personnel were captured by the Japanese. One third of them would never return home.

    Prisoners of war were held in Changi, the main camp in Singapore, and throughout Asia, in Java, Sumatra, Ambon, Borneo, Manchuria, Formosa (now Taiwan), and Japan itself. Thousands endured torture, disease, starvation, inhumane work conditions, degradation and deprivation of all kinds, as they toiled to build a 420 kilometre rail link from Bampong

    never again:to Thanbyuzayat, on the border between Thailand and Burma.

    The Japanese had signed but never ratified the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. At the outbreak of war the Japanese government had notified that it would apply the provisions of the Geneva Convention for prisoners of war and civilian internees mutatis mutandis (with the necessary alterations). The reality, and the practice of their military, was very different.

    Stunned by the swift fall of Singapore in 1942, when the vast majority of Australian POWs were taken, the Australian public responded eagerly to Red Cross fundraising appeals for POWs. Particularly successful was the Adopt a POW Scheme, where individuals, families, and sometimes streets, pledged to donate the amount needed to support one POW. In Europe the ICRC found

    Above: Red Cross fundraising poster and Red Cross Parcel and family letter hoping to

    reach relative via Tokyo, with only address Thai Camp, Thailand. Photo: AWM

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

    By Julia Hartelius, IHL Volunteer

  • IHL magazine 15

    prisoners of war under the Japanese

    ways of getting parcels to POWs, for example via neutral Portugal. Many of the approximately 8,000 Australian POWs held by the Germans and the Italians would attest that Red Cross parcels saved their lives. But on the other side of the world, in the Asia-Pacific theatre of war, no formal arrangement for the exchange of relief parcels was ever agreed. Efforts to negotiate met with delay after delay, obstacle after obstacle. Requests to the Japanese government were often ignored, simply met with silence.

    Communication of news was equally fraught. The Japanese had indicated in early 1942 that they would set up a POW Bureau in Tokyo, but the first

    government agreed to accept relief parcels brought overland or by sea through Russian territory. Parcels were rushed to Vladivostok but were not allowed further.

    In the intensely militaristic culture of the time, the Japanese saw prisoners of war as a disgrace. Japanese civilian internees held in Australia received some parcels and money via the Japanese Red Cross. Their prisoners of war did not: they had brought dishonour upon themselves and the army.

    When the war ended the horrors of the Japanese camps were revealed. During the early weeks of 1945 a Red Cross Field Force Recovery

    Burma or Thailand. 1945. Corporal Reginald Lloyd Harvey, showing the condition of many prisoners of

    the Japanese at the end of the war. Photo: AWM

    Prisoners of war, as stated by the Geneva Conventions, must be treated with dignity and respect, and deserve fundamental protections to ensure their survival and their repatriation at the end of hostilities. Often it has been reciprocity the idea of arrangements benefitting both sides that has provided the key. Both the ICRC and Australian Red Cross tried everything to reach Australian POWs under the Japanese, but were unsuccessful due to the lack of this mutual understanding. The spectres of Sandakan, the River Kwai and Hellfire Pass still admonish the world of IHL with Never again.

    news of those captured in Malaya did not reach Britain until November of that year. When lists of POWs did come, they were never complete. Many thousands were never heard of at all, either officially or unofficially. The only relief came in November 1943 when 23,000 letters and cards, then another set of 14,000, suddenly arrived. Many Australian families spent months and years at home without news.

    Constant pressure on the Japanese government by the ICRC to provide lists of prisoners and their locations, to open up lines of communication and get relief parcels through were largely unsuccessful. Only a few parcels managed to reach those in desperate need. Australian Red Cross, spearheaded by Chairman Dr John Newman-Morris, explored every option, even attending a conference in Washington to plead the cause. In April 1943 the Japanese

    Unit was dispatched to Borneo and Singapore. Red Cross workers, including Tasmanian Phyl Daymon, entered Changi, and found men of skin and bone, barely alive. Many of the surviving POWs were in such a weak state that they had to be island-hopped home, regaining weight and strength sometimes for days or weeks before the next leg of the journey. At each location they found a Red Cross Field Force station providing medical treatment and welfare services.

    They were very very sick men [...] too ill to go any further until we built them up,

    recalls Maureen White, Field Force Officer on Morotai.

  • a century of memories

    IHL Manager Glenn ONeill role-plays as

    an

    ICRC delegate, negotiating with military

    police to enter a detention facility, Kang

    aroo

    Exercise 1992, near Katherine NT.

    Red Cross Archival Image

    Parcel sent to Australian POWs held in World War II Europe. 6000 parcels were packed and sent each week. Food, especially biscuits, was fortified with extra vitamins. Red Cross Archival Image

    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

    Tomas Macura (left) and Mark Gidding,

    University of Adelaide, winners of ICRCs

    2012 Asia-Pacific Regional IHL Moot, held

    annually in Hong Kong. Australian Red Cross

    Storpedoettes for parachuting emergency blood supplies,

    developed in 1950s from smaller World War II versions. The delivery

    of fresh blood and serum across the Pacific, often from Brisbane,

    saved countless lives. Red Cross Archival Image

    World War II store in Papua New Guinea. Red Cross Archival Image

    Young Humanitarians draw attention to the

    humanitarian consequences of nuclear weapons in a

    flash-mob in Bourke St Melbourne, 2011.

    Australian Red Cross

    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 depict

    ed

    their understanding of the 7 Fundamental Principles -

    here,

    Unity. Australian Red Cross

    Field Force welfare team of Maxine Frost, Moya Ford and Elizabeth Funck ready for Malaya, 1953. Red Cross Archival Image

    Dissemination poster Australian Red Cross

    Australian Red Cross

    put forward proposal

    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

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

    IHLs strength: its young professionals.

    Melbournes Friends of IHL volunteers,

    with Her Excellency Ms Quentin Bryce AC,

    Governor General at their 2006 Women

    and War event. Photo: Amy Halihan

    a century of memories collage provided by the Queensland IHL Committee

    Packing of comfort packages at Australian Red Cross Depot in London in WWI. Photo: AWM

    Leon Stubbings (Secretary General 1955-1988)

    and Sir Geoffery Newman-Morris (National Chairman 1958-1978). For decades both thrived in

    international roles. Red Cross Archival Image

    IHL Manager Glenn ONeill role-plays as

    an

    ICRC delegate, negotiating with military

    police to enter a detention facility, Kang

    aroo

    Exercise 1992, near Katherine NT.

    Red Cross Archival Image

    Map of the fictional Orangetown an interactive schools resource about military targeting. Australian Red Cross

    Professor Tim McCormack and

    Dr Helen Durham, exceptional

    academic minds and IHL

    contributors of the 1990s/2000s.

    Parcel sent to Australian POWs held in World War II Europe. 6000 parcels were packed and sent each week. Food, especially biscuits, was fortified with extra vitamins. Red Cross Archival Image

    Queensland Enquiry Bureau for the Wounded, Missing and POWs, Brisbane 1942. As envisaged by the Geneva Convention III, Article 122. 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 depict

    ed

    their understanding of the 7 Fundamental Principles -

    here,

    Unity. Australian Red Cross

    Statutory Meeting welcome reception at the Opera House Sydney, 11

    November 2013. Australian Red Cross /Resource credit David Gray

    The quintessential face

    of Red Cross in World

    War

    I the uniform of Vol

    untary Aid Detachmen

    ts.

    VAs carried out domes

    tic and quasi-nursing

    responsibilities in hosp

    itals and convalescen

    t homes.

    Government House, Sy

    dney, 1916.

    Red Cross Archival Im

    age

  • The Australian Red Cross Field Force arrived in Vietnam in 1965, a matter of weeks after the Australian Army. Its authority came from the First Geneva Convention, specifically Article 26:

    The staff of National Red Cross Societies duly recognised and authorised by their Governments [may be employed to act as auxiliaries to the regular medical service of its armed forces] providing that the staff of such societies are subject to military laws and regulations.As an officially accredited philanthropic organisation to the military, the Australian Red Cross function was to provide welfare and

    social services and to assist in the care of the sick and wounded, their families, and other hospital workers. In total 20 Field Force representatives served in Vietnam between 1965 and 1971, often alongside New Zealand Red Cross colleagues. Despite their role being little known at home, these women - for they were all women but one - disregarded their personal safety in order to ease the burden for Australian soldiers caught up in the horror and mayhem of war.

    That welfare rather than medical assistance was being provided to the troops did not make the work any less life-saving. Pam Spence (Werner), the first Field Officer in Vietnam, recalls being woken by a Major on her second night, with the news that wounded had been brought to the hospital where she was stationed. When these boys, in torn and blood-stained jungle

    women of theAustralian Red Cross Field Force in Vietnam

    the

    By Dr Jennifer Mora, representing the

    Tasmanian IHL Committee and Julia Hartelius,

    IHL volunteer

  • IHL magazine 19

    greens, realised that Pam was also Aussie, their relief was palpable.

    As I talked to them I could see them relax; somebody was there who knew about them. I reassured them.The role, being on deck whenever needed, 12 to 14 hours a day, was exhausting and busiest during heavy periods of fighting. The tropical conditions in Vietnam were trying, in either the intense heat of the dry season or the constant and heavy rains of the monsoon. Malaria plagued everyone. The nature of the fighting took a heavy psychological toll. Concealed enemy troops, guerrilla tactics, landmines, booby traps - the front line was anywhere and everywhere, and danger was ever-present. Each day, Australian Red Cross women accompanied a Brigadier on his morning flight into the heart of the fighting zone. Here they would tend to the wounded, assist with medical evacuations, transmit casualty reports and take messages which were sent on to families at home. Australian Red Cross Field Force Officer Janice Webb (Hilton) of Victoria, recalls:

    The war was terrible but we didnt have time to think about that we just felt there was work to be done. It was hard work, especially trying to help those who had the most horrific injuries, but it was rewarding. We all gained strength from it.Marie Hunter (Boyle) of South Australia, who completed two tours of duty, recalls the Tet Offensive of 1968:

    It was the first time I had seen any artillery fire at night. When we got to the hospital it was in darkness because of the fighting. They put the chopper down

    on the pad, pushed me out and said Were off. There I was, not knowing the location. Suddenly a door opened and someone beckoned me in. It was an exciting night with fighters taking off all the time and bombers coming in and out. Amid all this turmoil we were able to help the wounded.The Australian Field Hospital at Vung Tau, the 8th Field Ambulance at Nui Dat (the Australian Task Force Base), the United States Hospitals in Saigon and Long Bink, Da Nang, the RAAF sick bay at Phan Rang: the Field Force covered them all, as well as having personnel in Singapore and at the No 4 RAAF Hospital at Butterworth, Malaya. Spare time, rare as it was, was easily taken up with giving lectures to the troops on the Geneva Conventions, visiting local orphanages in particular to help lift the nutrition levels of the children by supplying high protein biscuits running a book/magazine service and taking shifts on the RAAFs Australian Forces Radio.

    During the Vietnam War, Australian Red Cross became all too aware of the difficulties in public perception that arose from its involvement, and that its traditional roles relating to the welfare of servicemen, often misunderstood, may be drawing to a close. Yet the troops they cared for had no doubt about the importance of the Field Forces contribution, the boost to morale that they brought to troops fighting a particularly brutal and unpopular war. The dangers and trauma of war are not necessarily lifted with the absence of weapons nor the protection of the emblem. The Australian Red Cross Field Force provided service that would have otherwise been neglected. These brave women provided comfort to others at the expense of their own, and their service, like that of their World War II and Korean War counterparts, is worthy of due record.

    We saw

    horrible

    injuries,

    military and

    civilian. Theyre

    engraved in

    my mind, still

    make me go

    cold

    Marie Boyle

    Top left: Commandant Janice Webb (Hilton) (far right), Australian Red Cross, with walking

    wounded at 8 Field Ambulance. Vietnam: Vung Tau Special Zone, Vung Tau, 1967.

    Photo: AWM, courtesy of Marie Boyle

    Bottom left: Red Cross Officer Carmel OShea on the RAAF Forces Radio, in Phuoc Tuy

    province, August 1970. Photo: AWM

    Above: Wilva Ghersi (left) and Marie Hunter (Boyle) outside 8 Field Ambulance in Nui Dat,

    Phuoc Tuy Province, 1968. Photo: AWM

    women of theAustralian Red Cross Field Force in Vietnam

  • In the relaxed pre-9/11 terrorism-conscious world, I was able to gain entry because of my links with a series of NGOs. Unlikely as it sounds now, interested observers were able to move freely among the diplomats and attend both the formal sessions and evening receptions.

    the road to the 1974 conferenceSince the 1950s guerrilla warfare had become the predominant form of fighting, used in wars of national liberation across Asia and Africa against European empires. The 1949 Geneva Conventions, born of World War II, had little to say about it. The Geneva Conventions principally dealt with the human victims of armed conflict and did not regulate its means and methods. In so far as there was any relevant international law regulating means and methods, it

    came from treaties, such as the Hague Conventions of 1899 and 1907, and much of the Hague Law dealt with weapons themselves.

    In the 1960s, the International Committee of the Red Cross (ICRC) decided that it was necessary to reaffirm and develop international humanitarian law to make it applicable to the new era and to address the means and methods of warfare. This was a courageous move. The ICRC convened committees of government experts. From the outset it was clear that this was going to be a project more politically fraught than the work of 1949. Many of the national governments that now existed had been colonies in 1949 and had therefore been excluded from the drafting of the Conventions. Early on it was decided that it would be too risky to attempt the draw up new Conventions. If everything went into the melting pot even less might emerge.

    negotiatingthe protocols:

    key IHL work of the 1970sBy Dr Keith Suter, Chair,

    New South Wales IHL Committee

    Above: Conference auditorium, Geneva, 1977 Photo: CICR/Kurz, Jean-Jacques.

    A quarter of a century after the four Geneva Conventions were adopted in 1949, a further Diplomatic Conference was convened in Geneva to discuss supplementing and updating them. The route to the 1974 Conference had been paved with controversy, and it continued right through the conference process until the final session in 1977.

    I was fortunate to be in Geneva at the time, undertaking research for my PhD (University of Sydney) on the international law of guerrilla warfare - later to be published as An International Law of Guerrilla Warfare: the global politics of law-making.

  • IHL magazine 21

    The four 1949 Conventions would remain, and Protocols would be added.

    Tension amongst governments was running high. All governments had concerns about law that might further regulate their ability to fight. They were apprehensive about any international regulation of what they deemed to be internal conflicts. Experts from the newly independent states wanted to declare a special status for national liberation movements - something opposed by representatives from the West.

    the diplomatic conferenceTodays diplomacy, such as in efforts to tackle climate change, commonly encounters division and stalemate. Alas, the 1974 conference was a bitter encounter of that kind. The Swiss Federal Council hosted the event. However it had had little experience in convening any large international gathering since 1949. Switzerland did not have full membership of the United Nations until 2002, even though it benefitted financially from having UN conferences and agencies on its soil. Switzerland too was on a steep learning curve. The ICRCs 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

    colonies were over. Article 1(4) talks of conflicts in which people are fighting against racist regimes and alien occupation. This language was a scarcely coded reference, first to South Africa, which still ran an apartheid regime and, second, to ongoing territorial disputes between Israel and Palestine. Protocol II built on Common Article 3 in the four Conventions and ended with a mere 28 Articles to regulate non-international conflicts.

    Creating the two Additional Protocols was a forewarning of how difficult it was going to be to create new treaties in a complex modern era. The Diplomatic Conferences outcome was the best that could be expected, given the highly charged political environment. The two Additional Protocols are far less regulatory than the ICRC hoped for in the late 1960s. Protocol II deals very superficially with non-international conflict and there is an immense need for stronger regulation.

    The ICRC carries out its valuable humanitarian work based on its carefully outlined mandate in the Conventions and Protocols. From there the ICRC treats the Protocols as a general basis from which to negotiate with parties in a conflict operating pragmatically in the legal gaps that remain.

    Above: Combatants patrolling the city of Mogadishu, Somalia. Photo: CICR, Francois de Sury

    Noreen Minogue, whose excellent communication skills for the Australian delegation made her a much-appreciated envoy.

    Red Cross Archival Image

    key IHL work of the 1970s

  • By Group Captain Chris Hanna, Director

    Operations and International Law

    Australian Defence Force

    Australian Red Cross international humanitarian law relationship:

    interactions since the 1990s

    the

    and

    Above: Participants at the March 2013 Red Cross IHL Course for the ADF: From left to right: CPL Allan Ravenscroft, FLTLT

    Darren Young, CAPT Adrian Sweatman and FLTLT Amanda Gloury

    Photo: Australian Red Cross

    The Australian Defence Force and Australian Red Cross share a vital interest in the promotion and protection of international humanitarian law (IHL). We are indeed fortunate that a vibrant relationship, both formal and informal, involving a flow of discussion, advice and opinion on a range of IHL matters, exists between us. It is a relationship which I, as a very junior ADF Legal Officer, was initiated into in 1993 by joining the IHL

    Committee of the Victorian Division of Australian Red Cross. Like other ADF Legal Officers, I have found it to be an enduring connection.

    Australias obligations under Additional Protocol I to the Geneva Conventions (API) are pivotal to the relationship between the ADF and Red Cross. In particular, Article 83 of API addresses the dissemination of the Geneva Conventions and API. It provides that

  • WA IHL Officer Viv Ryan teaches a group at HMAS Stirling, Western Australia. Photo Australian Red Cross

    IHL magazine 23

    States Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries. This includes the study thereof in their programmes of military instruction.

    During my time in the ADF, there have been three major areas of interaction between the ADF and Australian Red Cross on IHL matters. In one way or another, these areas relate to Australias obligations under Article 83. A fourth area involves Australian Red Cross interaction with the Department of Defence as a whole and, in particular, Australias obligations to protect the red cross emblem.

    The first area of interaction is ADF membership of Australian Red Cross IHL committees at a national, as well as at state and territory, level. ADF participation in these IHL committees facilitates regular engagement and liaison, enhancing both parties understanding of IHL issues of mutual interest and responsibility. With the ADF posting cycle, I have now served on three separate state/territory IHL committees and in my current role routinely attend the national committee meetings. Each was different, but each was marked by a common passion and enthusiasm of its members for IHL.

    The second area of interaction is ADF involvement in both the receipt and delivery of IHL training conducted by Australian Red Cross. This includes the flagship Australian Red Cross IHL Course for the ADF which is 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-Trainers course (Class of 93 under

    the tutelage of Ms Bev Patterson) and later as presenter on subjects such as the law applicable to targeting.

    The third area of interaction arises out of Australian Red Cross participation in the planning for and execution of military exercises and operations. Members of Red Cross have attended ADF planning conferences and training exercises, provided training to ADF members, and been involved in both exercises and operations advising on Australian Red Cross perspectives of IHL and other issues. In many cases, ICRC representatives provided guidance and leadership to Australian Red Cross personnel. My key experience with these ICRC/Australian Red Cross teams was during major command post exercises conducted out of the ADF Warfare Centre in the late 1990s. In these exercises, the ICRC/Australian Red Cross representatives added depth and realism by replicating the roles the ICRC might expect to play in a major conflict, including in respect to prisoners of war and the protection of the civilian population.

    The fourth area of interaction relates to the use of the red cross

    emblem. The Department of Defence administers Section 15 of the Geneva Conventions Act 1957 (Cth) (the Act), as it is the Minister for Defence who must consent in writing to the use of the red cross and related emblems. Australian Red Cross and Defence therefore regularly interact in relation to notifications of the misuse of a red cross emblem, and the authorisation to use such emblems. Both Defence and Australian Red Cross take a constructive, educative approach to managing potential breaches of the Act. We routinely discuss specific uses of images and logos that may fall within the Act. These discussions may lead to the provision of reports to the Minister for Defence on potential breaches of the Act.

    In conclusion, a positive working relationship between the ADF and Australian Red Cross on IHL issues is a useful and efficient method of seeking to fulfil Australias obligations under Protocol I. The challenge for future members of both the ADF and Australian Red Cross will be to find new opportunities as they arise to maintain and enhance the strength of the relationship to promote and protect IHL.

    Australian Red Cross international humanitarian law relationship:

    interactions since the 1990s

  • By Professor William Maley, Director of

    Asia-Pacific College of Diplomacy, Australian

    National University

    landmines advocacyRed Cross

    The Fundamental Principles of the International Red Cross and Red Crescent Movement have typically prevented it from engaging in forms of advocacy that could be seen as either strident or overtly partisan. This has historically been one of the great strengths of the Movement, including its member National Societies. But, that said, one of the most significant achievements of the Red Cross Movement, in partnership with a number of like-minded organisations, has been the use of nuanced advocacy to encourage the development of rules of international humanitarian law. One of the most striking recent examples relates to Red Cross Movement actions to address the problem of anti-personnel landmines across numerous countries wracked by

    internal political conflict. Culminating in the opening for signature in 1997 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (commonly known as the Ottawa Treaty), the campaign to which Red Cross contributed provides powerful evidence of how mature, expert advocacy can be used for the betterment of humanity. Three particular areas of activity come to mind.

    First, the Red Cross Movement contributed to what scholars call norm entrepreneurship. The Ottawa Treaty was not a classic arms-control treaty, but rather a device for establishing a norm to anathematise a particular weapon.

    and

  • IHL magazine 25

    military leaders, including General Sir Hugh Beach, former Master-General of the Ordnance of the British Army. They were also endorsed by a group of specialists, including this writer, at a conference organised by Red Cross in Manila in July 1997. Anti-personnel Landmines: Friend or Foe? was widely distributed in Australia. The military expertise distilled in the publication was augmented by legal skills provided by the Red Cross Movement. Dr Stuart Maslen played a leading role in this respect, and it is not surprising that he then authored a study of the Ottawa Convention in the book series known as Oxford Commentaries on International Law. Australian IHL Officers pressed the legal case vigorously.

    Finally, the Red Cross Movement contributed very energetically to the implementation of the Ottawa Treaty. The treaty came into effect with remarkable speed, on 1 March 1999, six months after the lodgment of the 40th instrument of ratification. By June 2014, there were no fewer than 161 parties to the treaty. That the treaty came into effect so swiftly was in no small measure due to the advocacy of National Societies that pressed their governments to move expeditiously to endorse the new norm that the treaty embodied. Here, the Red Cross Movements expertise was a very important asset. Regional delegations of the ICRC were able to share information to empower National Societies in parts of the world where the landmines problem had not loomed large so that they also could lobby their own governments effectively.

    This case embodies a very important lesson. The principle of Neutrality is central to the work of the Red Cross Movement, but it does not bar engagement in principled advocacy on issues of humanitarian concern. On such issues, the Red Cross Movement can and should be heard.

    Norm entrepreneurs, (Martha Finnemore and Kathryn Sikkink argued in a famous article in 1998 in the journal International Organization) are critical for norm emergence because they call attention to issues or even create issues by using language that names, interprets, and dramatizes them. The Red Cross Movement was not alone in contributing to the development of normative prohibitions on landmines. The Canadian Foreign Minister, Lloyd Axworthy, played a critical role, as did the International Campaign to Ban Landmines. The Red Cross Movement, however, was uniquely placed to make its own contribution, not only because it was highly respected, but because many of its National Societies had large networks of supporters who could be mobilised to press the case for a mine ban. Indeed, there is some evidence that the very first people who sought to put the issue of anti-personnel mines on the agenda of public discussion were surgeons working for the International Committee of the Red Cross who had seen close up the horrendous consequences of landmine injuries for civilians. Australian Red Cross was particularly active in pressing the anti-landmines case.

    Second, the Red Cross Movement was able to mobilise significant expertise to support the ban campaign. Of particular importance was the 1996 publication by the ICRC of Anti-personnel Landmines: Friend or Foe?A study of the military use and effectiveness of anti-personnel mines, which forensically demolished a range of strategic and tactical arguments for the retention of such weapons. The principal author was a retired British Brigadier, Patrick Blagden, whose credentials as an expert were beyond reproach; and the findings were endorsed by a range of eminent generals and

    Top: Sarajevo. Implosion device set to destroy mines. CICR/GRABHORN, Paul (1996)

    Above: Child injured by landmine, Kompong Speu Hospital, Cambodia long supported by Australian Red Cross Landmine Survivor Assistance Program.

    Red Cross Archival Image.

    Top left: Adjusting a prosthesis, Juba, South Sudan, teaching hospital supported by ICRC.

    CICR/Heger, Boris (2006)

    Left: Poster from advocacy campaigns against anti-personnel landmines. Such weapons breach IHL in that they cannot distinguish between combatants

    and civilians. Red Cross Archival Image

    landmines advocacy

  • which followed World War II, and revived in 1989 when Trinidad and Tobago proposed the creation of a permanent international court to deal with the illegal drug trade. The message struck a chord, and the International Law Commission (ILC) recommenced its work on a draft statute. This was nearing completion when, in 1994, the horrors of Rwanda and the former Yugoslavia inspired the establishment of ad hoc tribunals to try war crimes in both regions.

    Things then began to move with relative speed. That year (1994), the ILC presented, to the General

    Assembly of the United Nations its final draft statute for an International Criminal Court (ICC). In response, the Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court. This met twice in 1995, and its report was followed by the creation of another committee - the Preparatory Committee on the Establishment of the ICC - to prepare a consolidated draft text. Between 1996 and 1998, six sessions of the Committee were held. The ICRC was among the international organisations and NGOs which made significant contributions to the Committees deliberations.

    Australias roadto ratification of the

    International Criminal Court

    By The Hon. David Harper, Chair, Victorian IHL

    Committee

    It was indeed a close run thing. Not that the idea was new. Gustave Moynier, one of the Swiss founding members of the International Committee of the Red Cross (ICRC) had predicted that one may be needed, way back in the 1870s. The creation of an international court, with jurisdiction over serious crimes of an international character, was first seriously mooted after World War I. It was given further impetus by the Nuremberg and Tokyo trials

  • Above: Former Tasmanian staff Bridget Dunne and Madeline Summers working in The Hague.

    Since the mid 1990s the IHL program has supplied large numbers of Australian interns and volunteers

    to the ICC and other international tribunals. Photo: Bridget Dunne

    Above: Australia deposited its instrument of ratification of the Rome Statute of the International Criminal Court at the United Nations in New York in July 2002. Photo: DFAT

    Top left: Wide view of the Security Council as Luis Moreno-Ocampo briefs on the situation in Darfur and ICC charges of genocide levied against Sudanese President Omar Al-Bashir,

    New York, 9 December 2010. Photo: UN /Ryan Brown

    IHL magazine 27

    The result was sufficiently positive for the General Assembly to convene a conference in Rome in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. It was to become binding when the number of ratifying countries reached 60. This occurred on 11 April 2002; but Australia was not a party.

    A single step remained: the Statute had yet to come legally into force. The date was set 1 July 2002. Only offences committed after that date would be justiciable in the Court; and only those nations which had ratified before then would have any say in its composition or in its rules.

    The Howard Government was having difficulty making up its mind. As early as October 1998, the Foreign Minister (Alexander Downer) and the Attorney-General (Daryl Williams) had said that the creation of the Court should be one of Australias highest priorities. Williams had since retired from politics, but Downer remained as Foreign Minister and continued his strong advocacy for Australias ratification. On the other hand, the Joint Standing Committee on Treaties, with a Government majority, was opposed, despite 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 Ministers position was not known, but some of his strongest supporters were opposed. Cabinet was to meet on Monday 24 June, with only seven days within which, if approval was given, to introduce the necessary legislation. Its position would be influenced by a meeting of

    Government members to be held on Tuesday 18 June.

    Tim McCormack and his colleagues were aware of the delicate balance in the Governments ranks. But it was not a partisan issue. And Tim was aware that a former Governor-General, Sir Ninian Stephen, saw the creation of the Court as important if the rule of law was to be given international significance. Indeed, Tim knew Sir Ninian well enough to know how to contact him in London (where Sir Ninian and Lady Stephen were then staying) and that he would cast a sympathetic eye over a draft statement which Tim had prepared. Sir Ninian might even put his name to a document based upon his own amended version of it. No endorsement could be more powerful.

    It was late on a London evening on 16 June when the call was put through. A copy of Tims draft reached Sir Ninians hotel. Amendments were made. The document was returned under Sir Ninians name, and delivered to the Sydney Morning Herald and The Age. Its publication on Tuesday 18 June almost certainly tipped the scales; but it benefitted by a day of hectic activity by Tim McCormack. He gave thirteen media interviews in which he

    put, with all the powers of persuasion which are uniquely his, the Australian Red Cross case in favour. As he was speaking, the party meeting was being held. Twenty-six spoke for ratification; nineteen were opposed.

    Cabinet was won over. On 27 June a diplomat, Richard Rowe, was despatched to New York with the instrument of ratification in his hand. He arrived within hours of the deadline. Australia ratified the treaty on 30 June 2002. It was a (very) close run thing.

    Australias road

  • By Emily Camins, Chair, Western Australian IHL Committee, with input from members Alisdair

    Putt and Harpal Ahluwalia

    particularly among soldiers. Over the years, the important preventative role of dissemination has come to the fore. International Committee of the Red Cross research shows that societies which have experienced war consider that the Geneva Conventions assist in maintaining humanity during armed conflict. Even for countries not directly affected by war, widespread understanding of the rules promotes respect for the law, domestically and internationally.

    An increase in armed conflicts in the early 1990s, including the First Gulf War and hostilities in such countries as the former Yugoslavia, Somalia and Rwanda, brought into sharp relief the need to ensure respect for IHL. With increasing military commitments overseas, in 1991 the Australian Government ratified the 1977 Additional Protocols (API and APII). Like the Geneva Conventions,

    For many people worldwide, war is a harsh daily reality. For the majority of the Australian population, war enters our lives only peripherally: through news stories from afflicted countries; through reports of Australian military and peace support operations on distant shores. One might then ask why a program teaching people in Australia about the body of law that regulates armed conflict international humanitarian law was developed, and how the program enriches our society.

    The importance of educating people about the laws of war has been acknowledged since the inception of the International Committee of the Red Cross. The final resolution of the 1869 Second International Conference of the Red Cross stipulated that Knowledge of the Articles of the Geneva Convention must be disseminated widely,

    dissemination in practice

    IHLtaking

    Quote on IHL by Nelson Mandela, on an Adelaide IHL volunteers T-shirt, 2010

    Photo: Australian Red Cross

    off the

    bookshelf:

  • IHL magazine 29

    Above: James Backwell, former ICRC delegate, addresses the Palestinian Bar Association, 2001 Photo courtesy of James Backwell

    Top left: Life-size figures on St Kilda Beach, Melbourne 2006 IHLs national campaign reminding Australians of the plight of child soldiers as young as seven or eight. Australian Red Cross

    API requires states to educate the armed forces and civilian population about IHL, and invites National Red Cross Societies to support this goal. The Australian Government bolstered existing dissemination efforts by funding Australian Red Cross IHL Officers part-time in each Division. Today, Red Cross continues to share this ongoing duty with the Australian Government.

    IHL dissemination is a core Australian Red Cross function, with a total of 11 staff dedicated to it, as well as active volunteer-based IHL Committees and associated supporter groups. Until recently, Red Cross funded a professorial Chair of IHL at Melbourne University (a position held for 14 years by Professor Tim McCormack), which contributed to a proliferation in tertiary IHL subjects nationwide. The ultimate purpose of dissemination is to reduce suffering in armed conflict by championing IHL to key groups including the Australian Defence Force, Australian Federal Police, Commonwealth government agencies, non-government organisations, professionals, students and the broader community.

    While liaising with Australias 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 sessions about child soldiers, she developed a close involvement with Australian Red Cross. Now working

    for the Department of Foreign Affairs and Trade on the delivery of Australias aid programs to Africa, she remains inspired by the ambition and robustness of the Geneva Conventions. Like many others (the author included), Sally credits the Australian Red Cross IHL program with having a profound effect on her life and career.

    All National Societies, including Australian Red Cross, are bound by the Movements Fundamental Principles in its dissemination work. These Principles are of critical importance in guaranteeing the integrity and unique status of the red cross and red crescent emblems, and the protective importance they bear for Red Cross delegates in the field. Australian Red Cross remains acutely aware that its words and actions in Australia could affect perceptions of the Red Cross Movement abroad, potentially jeopardising the safety of personnel. Therefore the Australian Red Cross IHL program must remain impartial and neutral, avoiding engaging in disputes of a political or ideological nature.

    Today, many parts of the Movement worldwide draw on Australias IHL program. Major James Backwell, presently with the Australian Army Legal Corps, led the Australian Red Cross IHL program in Victoria before becoming Legal Coordinator with the ICRC delegation to Israel and the Occupied and Autonomous Territories in 2001. In this role, Major Backwell used the Australian Red Cross ADF Instructors Course manual to educate various groups including the Gaza Bar Association, Israeli Defence Force, Palestinian Red Crescent and Magen David Adom. The Australian Red Cross IHL dissemination program is one of the best of all the National Societies, says Major Backwell. It continues to assist me in training all levels of ADF personnel in their responsibilities under the Geneva Conventions.

    Education is a better guarantee of respect for the rules of IHL than any sanction ever could be. Ultimately, it is only by concerning ourselves with the plight of others that we, as members of the international community, can help limit suffering in armed conflict, regardless of where we live.

    IHLbookshelf:

  • By Dr Carrie McDougall, representing the

    Australian Capital Territory IHL Committee1

    Of course, outstanding questions about the proper interpretation of IHL still exist. The intensity threshold that must be met for armed violence to be classified as armed conflict; the definition of attack in the cyber context; the applicability of IHL to UN peace enforcement operations; the implications of consent to humanitarian access being arbitrarily denied; and the interaction between IHL and international human rights law, are just some of the issues that remain unsettled. Australian Red Cross is able to provide expert advice to inform the Australian Governments consideration of these issues.

    Sadly, there appears to be little prospect of armed conflicts abating. As such, IHL will be as relevant in the next 100 years as it has been in the past century. For this reason, the Australian Red Cross will have a critical role to play in promoting the dissemination and implementation of rules aimed at limiting the devastating impact of war.

    Conventions, their Additional Protocols and customary international law still provide a suitable legal framework for the regulation of the conduct of parties to armed conflicts. As the ICRC concluded in its Study on Strengthening Legal Protection for Victims of Armed Conflict, the rules are detailed, time-tested, and widely accepted.

    Consistent with this view, States have said that in almost all cases, what is required is stricter compliance with IHL, rather than the adoption of new rules. To this end, the Swiss Government and the ICRC are facilitating a process aimed at strengthening IHL compliance by means of enhancing the effectiveness of existing compliance mechanisms, or possibly creating new ones, such as the convening of conferences of States Parties or the periodic reporting of States.

    Efforts are also being made to identify best practice guidance for IHL implementation. Examples of processes already concluded are those that resulted in the ICRCs Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL and the Handling of Detainees in International Military Operations, also known as the Copenhagen Process. Building on the latter, the ICRC is currently conducting consultations in relation to strengthening legal protections for persons deprived of their liberty in NIAC.

    Australia is playing an active role in these processes. As Australia develops its national positions, there will be an opportunity for Australian Red Cross voice to be heard and considered.

    Most armed conflicts today bear little resemblance to the war to end all wars of 1914. Asymmetric encounters between non-State armed groups and government armed forces have become common. There has been an increase of non-international armed conflicts (NIACs) with an extraterritorial element and NIACs that have become internationalised as a result of the intervention of multinational forces. Prolonged and transformative occupations challenge the IHL obligations of Occupying Powers.

    Twenty-first century conflicts are frequently fought in densely populated urban areas, with consequent implications for civilians. They are marked by the failure of combatants to clearly distinguish themselves and the increased involvement of civilians in activities supporting combat. And while horrifying statistics about the harm inflicted by small arms and light weapons demonstrate that old technologies are as destructive as ever, new technologies such as unmanned aerial vehicles, automated weapons systems and cyber attacks are becoming increasingly prevalent, with nanotechnology and lethal autonomous weapons looming on the horizon.

    The evolving nature of conflict has resulted in increased humanitarian needs, something exacerbated by the all too frequent deliberate targeting of civilians. Against this backdrop, humanitarian assistance has emerged as an issue of increasing concern, as humanitarian organisations are denied access, or are deliberately threatened or attacked.

    A majority of States have consistently expressed the view that the Geneva

    the next 100years

    The threat of cyber warfare. NATO

    1. Dr Carrie McDougall, BA (Hons), LLB (Hons), PhD is a Legal Specialist in the International Law Section of the Department of Foreign Affairs and Trade (DFAT). This article was written in a personal capacity and does not necessarily reflect the views of DFAT.

  • Humanity The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all people.

    ImpartialityIt makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

    NeutralityIn order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

    IndependenceThe Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.

    Voluntary ServiceIt is a voluntary relief movement not prompted in any manner by desire for gain.

    UnityThere can be only one Red Cross or Red Crescent Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.

    UniversalityThe International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide.

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

    Catatumbo Mountains, Colombia. Fighters being taught international humanitarian law. Photo: ICRC/Boris Heger

    International Humanitarian Law (IHL) ProgramAustral