Yale Symposium on Holocaust and Genocide: Heinrich

February 24, 2023

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February 2, 2023

Supported by the Lindenthal Family

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00:06I want to introduce our next speaker please.
00:08And our next speaker is Andrew Heinrich.
00:12And Andrew is actually a mutual friend
00:15of of Jacob Lindenthal and mine.
00:18So Jacob said if you're doing something
00:19like this you should really speak to Andrew.
00:21And I spoke to Andrew before we did
00:23this the first time and he helped me
00:25organize some things and find some
00:27superb speakers last year and this year.
00:29And so we kind of plan a lot of this
00:31stuff together and you're currently
00:33works for the federal government.
00:35And so before we say anything else,
00:36you have to say that.
00:37Opinions are not necessarily those.
00:38Is there something I'm supposed to say?
00:40The views expressed are his own and do not
00:42reflect the views of the US government.
00:44So, Andrew, you just to be clear,
00:45you do not speak for the
00:46United States government
00:47here. All right, we got that. OK. I'm Andrew
00:50as a as a remarkably Andrew Heinrich JD,
00:53a Master of philosophy.
00:56Is currently the special policy and Projects
00:58Coordinator at the office of Senator
01:00Robert Menendez and he's the founder
01:02of something called Project Rousseau.
01:04And this is a US based charity that
01:06empowers youth and communities with the
01:08greatest need to reach their full potential
01:10and pursue and excel in higher education.
01:12Since then, he's gone on to expand his
01:15portfolio with an emphasis on improving
01:16the lives of others in the greatest need,
01:18focusing on refugees,
01:20Native Americans and homeless youth.
01:23Andrews areas of research include
01:25post conflict reconstruction,
01:27public international law
01:28and regulatory affairs.
01:30His work has been published
01:31by Oxford University of Press,
01:32Foreign Affairs and the New England
01:34Journal of Medicine, among others.
01:36Andrew received his JD from Harvard Law
01:38School in his M Phil and international
01:41relationships at the University of Oxford,
01:43and his bachelor's degree is from
01:46my alma mater, Columbia University.
01:49It's a pleasure to have you here, Andrew.
01:51The our symposium, as you've seen,
01:54as you saw from the agenda,
01:55we want to address issues related to
01:57physicians in the Holocaust of the Nazi era.
01:59But of course we we look beyond that as well.
02:02And so Andrew's talk is entitled
02:04healthcare professionals in conflict
02:06zones and humanitarian emergencies.
02:08Welcome, Andrew Heineman.
02:11Thank you mark.
02:12Such a pleasure to be here.
02:14You do a phenomenal job with this
02:16every year and so fortunate to call
02:18you a friend and and colleague.
02:20Thank you also to Karen.
02:22I think we all need to Karen in our lives.
02:24Karen has been an amazing organizer
02:25of this and and has put up with my
02:28frenetic emails and I'm sure many others.
02:30So many Many thanks to her as well.
02:32Thanks to Ruth for joining us.
02:34A good friend of mine for over a decade
02:36now who I know taught me so much.
02:38The stopper Steiner was something
02:40I learned about through personal.
02:41Narrative first with my own family,
02:43so it's been great to learn about
02:44it from a scholarly perspective.
02:46You already heard the views of my own,
02:47so I don't have to repeat it,
02:49but I just did.
02:50And those are informed by the
02:52amazing Teaching, scholarship,
02:54mentorship of so many people,
02:56but especially Gabby Bloom and Ben Saul,
02:59who have really shaped my
03:01thinking in this space.
03:02Medical ethics during times of war
03:05are approximately 200 years in the
03:07making in their formal existence,
03:09though, as we'll talk about,
03:10they have informal routes
03:12that go back much further.
03:14I think it's important to look at
03:15some of the earliest antecedents to
03:17what we have today to understand the
03:19evolution to where we stand currently
03:20with what's on paper currently,
03:22what's normatively accepted currently,
03:25but also to ask ourselves some
03:27of the questions about what's
03:28changed since and how maybe current
03:30realities might pose questions to.
03:32Health care providers that are more
03:34difficult than some of our existing
03:37frameworks suggest they might be.
03:39And I think that the Second World
03:41War is a very obvious inflection
03:43point that existed at for codifying
03:46in international humanitarian law,
03:48as we call it today.
03:50But it's possible that we could argue
03:53that both 911 and what Caldor likes
03:56called the emergence of new wars,
03:58wars that are fought very
04:00differently than one army,
04:01lines up on one side,
04:02the other lines up on the other
04:03side of the battlefield.
04:04They run at each other and instead
04:06we have wars fought in cities,
04:08Wars fought in densely populated areas,
04:10wars fought with folks who might not be
04:13in formal militaries where we have to
04:15problematize a lot of the question or
04:17a lot of the norms that we've come to accept.
04:20So I'll proceed in four parts,
04:22and 1st I want to run us through some of
04:25the history of international mandarins,
04:27laws,
04:28antecedents,
04:28and how some of the questions around law
04:32of war and medical ethics during war.
04:35Evolved from,
04:35let's call it the earliest times
04:37of recorded history through
04:39the middle of the 19th century.
04:41Then I'll talk a little bit about some
04:43of the inflection points in the 19th century.
04:45I'll bring a secondly towards
04:47World War Two itself,
04:49running through some of the ways
04:51in which the progress that had
04:53been made in the 19th century
04:54regressed significantly
04:55and what that prompted the
04:57international community to do,
04:58namely the Geneva Conventions.
05:013rd I want to discuss about some of the
05:06conventions themselves and the way that I,
05:08HL, formed in medical ethics formed as a
05:11body right after World War Two, which is.
05:13Functionally the latest and most
05:15recent normative framework we have,
05:17on paper at least. And then finally,
05:20I'll pose those contemporary questions,
05:22questions that might be practical for some
05:24of you in the room as healthcare providers,
05:26about ways that the post 9/11 world,
05:30the way that new wars are
05:32challenging some of those doctrines.
05:34Some of those norms.
05:34And the way that we might think about
05:36some of the things that are currently
05:38both normally normatively accepted
05:40in our international community,
05:42such as counterterrorism law and
05:45international Unitarian law,
05:47and how they conflict and how we
05:49may or may not want to. Resolve it.
05:51So first a little bit on the
05:53origins of the idea of law of war.
05:55And you know I think that war as we know
05:59since the beginning of human history has
06:01largely until recently been indiscriminate.
06:03It was a very much you know as many
06:06thinkers of nationalism would tell you
06:07in the 19th and 20th century it was
06:10very much an US against the other concept.
06:12So anyone on the other side was an other,
06:14be it a civilian or non civilian.
06:15The idea of of of distinction meaning
06:18you distinguish between a civilian
06:20and a combatant.
06:21There's not really done.
06:23But there were areas of law,
06:27of religious teaching where that's
06:29where you see some of the the
06:31bubbling up of antecedents of today's
06:34international humanitarian law,
06:35the Mahabharata says.
06:36And I I love how it's framed.
06:40One should not assail someone in distress,
06:42neither to scare him nor to defeat him.
06:45We should be war should be
06:47waged for the sake of conquest.
06:49One should not be enraged toward an enemy.
06:52Who is trying to kill him?
06:53I think you see early principles against
06:56torture in that perhaps you might
06:58see other early principles against.
07:00If you think of when they're,
07:02they're probably using the concept of the
07:04term enemy as the broader concept of enemy,
07:06because distinction hadn't occurred yet.
07:08So they're probably thinking a little
07:10bit about non combatants as well.
07:12And we can look to Torah.
07:14Deuteronomy 2019 tells us that when
07:17you besiege a city for a long time,
07:20making a war against it in order
07:22to take it you.
07:23Shall not destroy its trees by
07:26wielding an axe against them,
07:28and many an Amtrak ride can be spent
07:31looking at Talmudic scriptures and
07:33trying to help figure this out.
07:36And what you learn is that there's
07:38there's an early belief in the
07:40protection of civilians in this piece,
07:43the idea that Egyptians would cut
07:45down trees of their enemies as
07:46a way to starve civilians,
07:48trees perhaps more broadly, meaning crops.
07:51And so Deuteronomy is instructing
07:53those who follow it.
07:54To not damage the livelihood of civilians,
07:57not to ravage a city,
07:58but instead to siege it,
07:59to take it for a strategic purpose.
08:01So you can see these early attempts
08:05at international humanitarian
08:07law as we might call it today.
08:09Come to the 19th century,
08:12we often say in a lot of areas
08:15of international law that we we
08:17innovated our way to destruction.
08:19You know, the the weapons of the
08:2119th century and then obviously
08:23those of the 20th century and
08:24beyond mean that the capacity for
08:27destruction got infinitely more
08:28industrialized and large scale.
08:30And so law and norms had
08:32to catch up with that.
08:35And I'll give just two brief
08:36pre World War Two examples.
08:38The first is the Lieber code.
08:40It's a very early example.
08:42It's from the Civil War,
08:43it's in the 1860s, the US Civil War,
08:45sorry to the international audience and
08:47it was promulgated unilaterally by the Union.
08:50So it is not multilateral in any way.
08:52No one else is agreeing to this.
08:53It's just a rule for Union soldiers
08:56and it's set forth certain rules.
08:58It protected medical personnel and protected.
09:01Non combatants.
09:02So we have distinction.
09:03And it gave the right to medical care,
09:05to prisoners of war.
09:06And perhaps this was because there
09:08was a realization that if the war
09:09resolved the way the Union wanted,
09:11which of course it did,
09:12these folks might be your fellow
09:14citizens if they survived the war.
09:16And that is an interesting step
09:19in that direction now almost
09:21simultaneously in Europe.
09:24You have the founding of the Red Cross,
09:25as you may know,
09:26in the 1860s,
09:27but also the first Geneva Convention.
09:30And the first Geneva Convention
09:31grew out of Alki DuMont,
09:33the founder of the Red Cross.
09:35Seeing the horrors of Napoleon.
09:38The third campaigns in Italy and saying
09:39that there are certain things that
09:41need to be done to protect civilians,
09:43to protect prisoners of war and crucially,
09:45crucially,
09:46to declare the neutrality of healthcare
09:49workers and healthcare facilities.
09:51The now seemingly simplistic but
09:53then perhaps revolutionary idea
09:56that if I participate in war
09:58by providing medical care to.
10:00Combatants on my side of the war.
10:03I am not myself a combatant,
10:05and I should be protected.
10:08Now many of these norms and these
10:10pre norms are those that we've
10:12said we've come to accept today.
10:14They're part of international
10:15humanitarian law,
10:16but of course we had quite a bit of
10:19backsliding in the Second World War.
10:21World War Two was the largest and
10:23deadliest war in human history in
10:25terms of absolute number of deaths.
10:27The battlefields were virtually
10:30international and in every continent,
10:33almost every continent,
10:34and and created an awareness that
10:36there were new institutions that
10:38were needed and new norms that were
10:40needed in order to uphold what is now
10:42known as international humanitarian law.
10:44Of course,
10:45we have many other areas of
10:46international law that grow
10:48out of the Second World War,
10:49like International Criminal law.
10:51As many of you may know,
10:53the term genocide only occurs
10:54or is first used in
10:56the Nuremberg trials.
10:57Uh and so we international
11:00humanitarian law is no exception.
11:02And I want to just start with one area
11:06of international Unitarian law from the
11:08first Geneva Convention from 1864 that
11:11I think we probably don't need to cite
11:13examples to show how egregiously it
11:15was violated in the Second World War.
11:17It states that wounded or sick combatants,
11:21and I quote to whatever
11:23nation they may belong,
11:24should be collected and cared for.
11:26I think we all know that didn't
11:28happen in the Second World War.
11:30And indeed you can look at pretty much any
11:32side of the conflict and know that that
11:34was not obeyed in the Second World War,
11:36but certainly on the part of the Axis.
11:39Many prisoners of war were deported
11:41to concentration camps and killed
11:43alongside victims of the Holocaust.
11:46They were often tortured.
11:47They were given no right to
11:49medical care whatsoever.
11:51Again, the Holocaust goes without saying
11:54as the greatest violation of every.
11:57Area of international law,
11:58particularly the fact that there
11:59was no distinction at all,
12:01but also civilian casualties on
12:02the other side of the conflict.
12:04The Tokyo fire bombings,
12:05of course,
12:06the nuclear bombs in Hiroshima and Nagasaki.
12:08And I always point to Hitchcock's
12:10book in this space on a bitter Rd.
12:12to freedom,
12:13knowing that the way that Europe
12:15was taken wasn't always respectful
12:18of civilian rights either.
12:20And.
12:21What I think is most striking,
12:23and I'll just dwell on it for a moment,
12:25with the Holocaust,
12:26was also the failure of some of
12:28the institutions that came out
12:29of the 19th century.
12:30I mentioned the Red Cross already,
12:32and I know there's a I think there should be.
12:35And there is rightfully much debate
12:37about the contribution of the Red
12:39Cross in the Second World War,
12:41particularly with respect to
12:42those in the concentration camps.
12:44I didn't know this before.
12:45I was preparing for this talk,
12:46but the ICRC,
12:48the International Commission
12:49on the Red Cross,
12:50is official statement on how
12:51they aided and proved that.
12:53Like an aid proved that they
12:55aided victims of the Holocaust,
12:57was that they sent food parcels to
12:59the concentration camps and they
13:00knew that they were working because,
13:02and I quote,
13:03the receipts were countersigned by
13:06the addresses provided by the access.
13:08I did not know that until I prepared
13:11for this and I I must say I found that
13:13quite alarming and and quite shocking.
13:19So what happened after the Second World War?
13:21There was a realization as the
13:23war across many institutions,
13:25that we needed a new normative structure
13:27and a new legal framework to protect
13:29the rights of those involved and to
13:32guide us into an into a new stage of war
13:35where war was increasingly mechanized,
13:37where we could protect civilians
13:39and protect noncombatants.
13:40And that's where the modern
13:42Geneva Conventions,
13:43the ones that are still the,
13:45you know, when someone refers
13:46to the Geneva Conventions today,
13:47these are what they're talking about,
13:49started to get promulgated.
13:50And I, I can go through a few of them,
13:53but I want to highlight some that I think
13:55we're going to problematize in just a few
13:57moments and we'll we'll focus on those.
13:59The first is that in the first
14:01Geneva Convention we focus on
14:02the wounded and the sick.
14:04And Article 3 says that persons
14:06taking no active part in the
14:09hostilities should be cared for
14:11no matter what functionally.
14:13And this is something that we will
14:15problematize because I'm going to ask
14:16you what does it mean to take part
14:18in hostilities in a in a little bit.
14:19And we'll see that maybe with new
14:21wars and with counter terrorism we
14:23might not know exactly what that means.
14:25And then the wounded insect shall
14:28be cared for also can.
14:32Expand in Article 13 to include
14:34a number of other categories,
14:37and that can be militias,
14:38that can be resistance movements,
14:40and that can even be volunteer corps
14:42who enter the the battlefield or
14:44areas tangential to the battlefield.
14:46Again, I think it's very important
14:48to remember that these were
14:49written with the kind of Napoleonic
14:51conception of the battlefield,
14:52that there's a field of grass,
14:53and that there are militaries
14:55lined up on either side.
14:56Article 14 of the of the first conceiving
14:59of Geneva Convention says that.
15:03All international law regarding
15:05prisoners of war must be applied to all
15:09prisoners taken in war who are combatants,
15:12including those who are wounded
15:13and sick of the other side,
15:14meaning that many would have
15:15a right to medical care.
15:19It upholds the idea of medical neutrality
15:22and so forth and and buildings
15:24you used to provide medical care.
15:27The third Geneva Convention is what
15:29protects the treatment of prisoner of wars,
15:31the prisoners of war, specifically it,
15:34you know, does things with respect to
15:37their their labor as as prisoners,
15:40other forms of release they have their
15:42entitlement to judicial proceedings.
15:44It also establishes that at the end of a war,
15:48prisoners of war must be released
15:50immediately and repatriated and that that
15:52both the repatriating prisoners of war,
15:54those going back to their home
15:56country and those helping them.
15:57Be repatriated are are neutral
16:00for the purposes of war.
16:04Now, this all feels probably
16:06very familiar to many of us,
16:09and indeed much of it feels aligned
16:12with medical biomedical ethics
16:15as they exist most broadly.
16:17But what I think we're about to do
16:19is see that some of these norms
16:21that are held up as if they're,
16:24you know, they cascaded,
16:25they're kind of universal now and.
16:27We might realize that some of them
16:29currently are being challenged in ways,
16:31some of which are very explicitly challenged.
16:33And we realize that many of which I think
16:36kind of had growth on the other side,
16:38meaning on the counterterrorism
16:40side in particular,
16:41that grew into a direction that maybe
16:42we didn't realize was happening.
16:44We being the kind of broad
16:46personified international community,
16:47didn't realize was going to run
16:49into conflict with DHL, but it has.
16:52And then a question about medical
16:54neutrality from the perspective of
16:56healthcare providers, by which I mean.
16:59What you all might think of as the duty
17:01of care to anyone who comes into your care,
17:04regardless of many
17:05identifying features of them.
17:08So I'd like to start first with
17:10the the wrench thrown in the IHL
17:13framework by IH by counter terrorism.
17:15After 911,
17:16the United Nations Security
17:19Council started to promulgate a
17:21series of resolutions that.
17:23Criminalize certain activities related
17:25to terrorism, and broadly speaking,
17:28they went in three directions,
17:31and they encouraged national
17:33legislation to criminalize terrorist
17:35activity in three directions.
17:371, which I will not address at all today,
17:39is pre and cohete offenses,
17:41meaning that if you go backwards
17:43from the actual terrorist act,
17:44that preparatory acts towards the
17:46terrorist act might itself be criminal.
17:49A second,
17:50which I will address tangentially,
17:52is criminalizing.
17:53Membership in terrorist organizations.
17:55Because we'll ask a little bit about
17:57what membership might mean and what
17:59that might mean for biomedical ethics.
18:01But third,
18:02there's this concept of of material support
18:05that is going to become very central here.
18:09So the UN Security Council starts
18:13with Resolution 1617 in 2005,
18:16and it says that any form of
18:19activity that supports at that
18:21point al Qaeda and a lot of these,
18:25the the terms of 1617 and the general
18:29counterterrorism regime expand about
18:31a decade later in response to ISIS
18:33or ISIL or the Islamic State,
18:35whatever you might call them,
18:37and.
18:38They.
18:38Criminalize under international law
18:42and encourage national legislation
18:45to be created to mirror this on the
18:48domestic levels that criminalize any form
18:51of assistance to a terrorist organization.
18:54Again initially Al Qaeda and then
18:56and then eventually broadened.
18:58And what it says and what it creates
19:02is a regime in which anything that,
19:06as the US law starts to call
19:08it material support,
19:09anything that that is material
19:11support for a terrorist organization
19:13would be considered criminal.
19:15And there have been cases that have focused
19:19precisely on the question of material
19:22source support in the form of medical care.
19:25And I focus on medical care
19:27rather than medicine because at
19:28least in the domestic U.S.
19:30law, there's a carve out that if
19:32you send medicine to a war zone that
19:35it might be terrorist controlled.
19:36The sending of medicine alone
19:39is not a material support,
19:41though there actually was such a case
19:44about someone who sent medicine bought.
19:46By someone else, the carve out is
19:48for the purchasing of the medicine,
19:49not necessarily for the transporting
19:50of it to the terrorist organization.
19:52That case,
19:53I believe is out of Scandinavia and I
19:55think Sweden specifically that that that
19:58asks that important question as well.
20:00There was a case in Peru in the 90s of a.
20:08Of of a member of the Proving
20:09Communist Party who was convicted
20:11under a similar statute before 9/11,
20:13of course because he provided medicines
20:15and medical instruments and care to those
20:18who the Peruvians consider to be terrorists.
20:21And more recently,
20:22and I think this is a phenomenal
20:24case from the US that we can use to
20:28problematize and and motivate some
20:30of our discussion is US versus severe.
20:34The the accused I should say at
20:37the outset were I,
20:39I believe,
20:39self stated,
20:40but certainly found to be in court
20:42to be jihadist in their ideology.
20:45But.
20:45The legal rationale of their
20:48conviction was purely done in
20:51the Senate under the logic that.
20:54Providing medical support to known jihadists.
20:57Medical care to known jihadists is material
21:00support of a terrorist organization.
21:03And the case.
21:04Is very narrow in that it thinks
21:07only of a member of the organization
21:10or a adherent of the organization.
21:13She had this ideology providing care
21:16to advance that ideology with that
21:18stated purpose to people who they know
21:21are actively engaging in activities
21:24of that jihadist organization
21:25with the goal of advancing that
21:28ideology and that their wounds came
21:30from those specific activities.
21:32So it's very narrowly written. Umm.
21:35What isn't addressed by the case?
21:39Is when if medical care were
21:43given to a perpetrator,
21:45let's say in a way that is
21:48compatible with medical ethics.
21:50So let's envision,
21:51heaven forbid,
21:52a terrorist attack in a place
21:54where most people who were victims
21:55might not be affiliated with the
21:58terrorist organization in any way.
21:59Say even it happened near a hospital
22:02in a country where some of you may
22:04work and the injured are brought
22:06to the hospital indiscriminately.
22:09Would it be criminal?
22:10Would it be,
22:10would it be material support
22:12of terrorism
22:13if you provided medical care to that person?
22:17I actually was thinking in this moment of,
22:18for example, those who care for
22:20and I I don't know their names,
22:23but those who conducted,
22:24I guess only one survived the the
22:27terrorist attacks at the Boston Marathon
22:29and I assume that person was wounded
22:31before that person was apprehended.
22:33I I don't know the exact story,
22:35but would caring for that person
22:37be material support of terrorism?
22:39In a way that's compatible.
22:40Now, there was no such prosecution.
22:42It's a hypothetical,
22:43but the way that the the precedent
22:46is set suggests that it would be.
22:49In fact, and I'll get to this a bit later,
22:51the US Supreme Court has has
22:52thought about this and has posited
22:54that that would be the case,
22:56particularly under international law,
22:57maybe more so than US domestic law,
23:00which is no less a problem for us,
23:02even if many of us are American,
23:03because of course it's the international
23:05norms that maybe contribute to U.S. law.
23:07That's a bigger debate, but certainly.
23:09Contribute to those around the world.
23:11So my question to you is,
23:13what is material support?
23:14What is material support of
23:16a terrorist organization?
23:18As I said,
23:19medicine itself is excluded as a
23:21matter of parenthetical statement.
23:23So are religious materials.
23:25So you could send religious
23:27materials as well,
23:27but you couldn't even provide expert advice.
23:31So I know that with the advent of
23:33zoom and other things that were
23:35how I lived my life for two years,
23:37and you probably all did too,
23:39that there are many consultations
23:41that occur via zoom.
23:43And so if a doctor in location
23:46X needs to seek the advice of
23:49a specialist in New Haven.
23:52And they have a zoom call and
23:54that specialist provides expert
23:56advice on how to handle.
23:58The whatever the case may be of the
24:01diagnosis of the patient, of the person,
24:04and of the foot doctor and location act.
24:07That would be material support
24:08under the Statute,
24:09under the US code, under U.S.
24:11Federal law.
24:12The question is, of course,
24:14prosecutorial discretion,
24:15would it be prosecuted in the US?
24:17But I think there's a more fundamental
24:19ethical question of do we want it to be?
24:22Is that a criminal activity in our eyes?
24:24Is that material support of terrorism,
24:26as you might define it?
24:28Is that in line with other
24:30biomedical ethical considerations
24:32that you all make in your work,
24:34in your clinical work, and in,
24:35in, in,
24:36day in and day out?
24:38I imagine there are people who many
24:39folks here have had to care for,
24:41and I'm sure if we had,
24:42we might have emergency medicine
24:44specialists in the room.
24:45But I bet you if we had more,
24:46I'm sure many may even have known that
24:48someone coming into their emergency room
24:50had just some done something egregious,
24:52maybe even done something that today
24:54might be called domestic terrorism,
24:56and that person was cared for.
24:58Is that what we want?
25:00Should medical care be treated differently
25:02than other forms of material support?
25:04If person A sends a wire of a large sum
25:07of money to a terrorist organization and
25:10person B provides expert consultations
25:12for folks who have been injured,
25:15are those the same?
25:16Are those do we want them to
25:18be treated the same?
25:19Do we normatively and ethically
25:20think they're the same?
25:22Now I think there's a counter
25:23argument to be had to show I'm not.
25:25Giving only one answer that maybe
25:27even medical that providing medical
25:29assistance isn't more egregious
25:30than just providing money.
25:32Because of course the health and
25:35ability to fight of the terrorists in a
25:38terrorist organization is the lifeblood
25:41by which they conduct terrorist activities.
25:44So perhaps it's even more
25:46essential than financial support.
25:48But I think it's a question
25:50that's worth asking.
25:52The idea that medical care
25:55being provided to an enemy,
25:58and specifically I say enemy.
26:00Is not profoundly new that
26:02it should be criminalized.
26:04The idea that it should be
26:05criminalized is not new.
26:06And in fact we know this because
26:08in our code of treason in the
26:10US our our federal code that
26:12that criminalizes treason,
26:14there is language that is quite
26:16broad about providing aid and comfort
26:18to enemies of the United States.
26:20Aid and comfort,
26:21I think could safely be considered
26:23medical care or to medical care
26:25could safely be considered to
26:26be included in that space,
26:28in that in that definition.
26:30And that would that would suggest that
26:34we already find this to be treasonous
26:36against the United States in some way.
26:38When of course the terrorist organization
26:41is a stated enemy of the United States,
26:44which in some cases they are,
26:46in some cases they aren't.
26:46We'll get to that in a little bit.
26:51I think, though, the question
26:53we need to ask ourselves is.
26:57What is unique about
26:59counterterrorism specifically,
27:01that might raise challenges with
27:03drawing that direct analogy?
27:05Indeed, I've already proposed some,
27:08because we have seen that there are
27:11some criminal offenses in the in
27:13the space of counterterrorism that
27:16are that go well beyond treason.
27:18But I'd like to give us three
27:22questions to consider to see if.
27:24We think that they're that different.
27:28The first is about aid to the citizenry, so.
27:32There's a hypothetical in the
27:34Supreme Court case that I'd like to,
27:37as it, were anonymized and abstract
27:39because it's it could be politically
27:41charged for other reasons.
27:43So I'm instead just going to
27:45say that in this hypothetical,
27:48which is the same hypothetical as
27:49the one used by the Supreme Court,
27:51suppose that nation A.
27:55Conducts a military strike
27:58against terrorist organization B.
28:02And. As a result of the strike,
28:05there are a number of wounded people.
28:09These people,
28:09and I call them people purposely,
28:11are probably some combination of known
28:14combatants for this terrorist organization,
28:16presumed combatants for this
28:18terrorist organization,
28:20terrorist affiliated noncombatants of
28:22the of the terrorist organization,
28:24meaning perhaps a cook who cooks
28:26for the terrorists,
28:27or whatever the case may be, a driver.
28:30And civilians.
28:32And presume that it's known or
28:35informed publicly or by nation A.
28:39That the existing medical
28:41infrastructure at the location of.
28:44The victims in location B is
28:47insufficient to care for everybody there.
28:51And so pick your favorite NGO that does
28:54medical work in this type of situation.
28:57That NGO runs in, saves the day,
29:00and provides emergency medical
29:02medical care in that space.
29:05Now, given the location of the attack,
29:08it would be fairly obvious to
29:11that NGO that many of the victims,
29:13the wounded individuals at location B,
29:17are terrorist combatants or are very
29:19likely to be terrorist combatants
29:21or terrorist members in other ways,
29:23and the Supreme Court asks itself
29:26under international law.
29:27Or under U.S.
29:29law,
29:29would that violate our concept of
29:31prohibiting military material support
29:34to terrorist organizations and the
29:37Supreme Court says under international law,
29:40absolutely,
29:41that would violate international law.
29:44The idea that the organization,
29:46the NGO, would know.
29:48That it was providing medical care to
29:51terrorists ahead of time would violate
29:54the UN Security Council resolutions
29:56to which I've referred today.
29:58It was not as convinced that it would
30:00be a violation of material support.
30:03But the question has been left
30:04open in other areas of U.S.
30:06law.
30:06And it this was a dictum, it wasn't a
30:07holding as a central area of this ruling.
30:10But the Supreme Court put,
30:11the US Supreme Court put this
30:14important question forward.
30:15This scenario might sound abstract
30:17because I've used A's and B's,
30:20but it's not abstract.
30:22Indeed,
30:22as many of you probably know,
30:24this is this is a very common scenario for
30:27how terrorist organizations are struck.
30:30So it's a question that's very
30:32lively and should be treated as
30:35an urgent one to address both for
30:38the sake of understanding where
30:41our ethics should delineate.
30:43The distinction between that which
30:46is material support and that which
30:48is not so the ethical question,
30:50but of course the practical question,
30:52because there are injured people and
30:54people whose lives are at stake in question,
30:57some of which we may morally wish to see.
31:03Protected and their medical rights
31:05to medical care upheld, and others
31:07where we may have differing opinions.
31:10This scenario will be increasingly likely
31:13as urban warfare continues to grow indeed,
31:16and some of these have been declassified
31:18and released where you you can see
31:20videos from the Iraq war that are
31:22often quite gruesome and harrowing.
31:24Where these calculations are
31:25made quite regularly, you know,
31:27are those injured people over there enemies,
31:29not enemies.
31:30And that's a that's a difficult question.
31:32When there was a strike on a building in
31:34a crowded complex near Baghdad in a way
31:36that it may not have been a difficult
31:39question when two aircraft carriers
31:41were approaching each other or, you know,
31:43battleships in in a different time.
31:46So that's our our our first question is.
31:50Does this expansion of our
31:53restrictions of our ability to?
31:56Provide medical care to,
31:58in this case, terrorist enemies.
32:02Unnecessarily and unfortunately,
32:03restrict our ability to provide
32:06care to citizens who are nearby,
32:09who are hapless victims.
32:13The second question.
32:15Is the membership one I raised earlier,
32:17who is a terrorist?
32:19UN Security Council resolutions
32:20have been very firm on this.
32:22You are a terrorist if you are a
32:24member of the organization by doing
32:25whatever it is the organization
32:27requires you to do to be a member.
32:29If you need to sign up for a card,
32:30signing up for that membership
32:32card makes you a terrorist.
32:33If you need to pledge some sort
32:35of allegiance, pledging that
32:36allegiance makes you a terrorist.
32:39And the question I think should be.
32:43To compare that.
32:44To what we think of when we
32:47think of traditional warfare.
32:49A cook in a barracks who cooks for his
32:54soldiers is not an enemy combatant.
32:57In fact he's a non combatant.
32:59But as a cook for,
33:01say, al Qaeda,
33:02who makes the pledge because perhaps
33:04he has to in order to join Al Qaeda.
33:07Is he an enemy combatant who's
33:08not entitled to medical care?
33:10Is a set of citizens.
33:14Of a certain country or a certain region
33:16of a country where that terrorist
33:19organization has effective control.
33:21Thinks perhaps of Kandahar province,
33:23even before the tragic events in
33:25Afghanistan a little over a year ago.
33:29Are they terrorists who aren't
33:31entitled to medical care?
33:33Our NGO's not allowed to provide
33:34service because it would be material
33:36support to a terrorist organization.
33:39I want to give two hypotheticals that I
33:42think will push this envelope even further.
33:45The first. Imagine something that exists.
33:49A refugee camp or a camp or a detention site,
33:54depending on your politics.
33:56Of women who are colloquially
33:59referred to as ISIS brides.
34:01Let's call that, you know,
34:02broadly speaking,
34:03Europeans and N Americans and many,
34:05probably many other nationalities who moved
34:08illegally to Syria during the peak of ISIS,
34:12married an ISIS fighter,
34:13had perhaps a child with ISIS and that
34:17bride and any such children that she
34:19may have had with the ISIS fighter
34:21are now in this detention camp.
34:25These are, as many of you may know there.
34:27There's a great many of them run
34:29by the Kurds at the moment in
34:31predominantly Kurdish held territory.
34:33And there is great public debate
34:34about what to do, especially about
34:36repatriating because many of them,
34:38because the mothers are often citizens
34:41of countries other than Syria.
34:43And the children, of course, if they,
34:45the mothers are from a country,
34:46say the United States,
34:47the child is entitled to US
34:49citizenship as well.
34:50So the question of repatriating
34:51these folks is, is 1 very,
34:53very large question,
34:54but I'm going to create a different.
34:56Pathetical,
34:56which is say that you are on the board
34:59of an NGO that has been approached by
35:02the Kurdish authorities and asked to
35:04provide medical care in this situation,
35:07and you're in a situation where
35:09you're board is voting on.
35:10Do you want to allocate funds,
35:11volunteers,
35:12all the other resources you need
35:14in order to make this possible?
35:16And you ask your organization's
35:19general counsel to consider any risk
35:22for liability under either material
35:24support doctrine if you're an American NGO,
35:26international law if you're
35:27anywhere in the world,
35:28or the equivalent statutes in your
35:31country if you are not an American NGO.
35:34Would you find that you have liability
35:37under those counterterrorism
35:38statutes and under international
35:40law because the ISIS brides are
35:43members of an organization that
35:45is still recognized to exist,
35:47though we don't talk about it in the
35:49same way in the public media anymore?
35:52And.
35:53Alright,
35:53do you treat the mothers who made a
35:56conscious decision differently than a child?
35:59Do you treat a child who did take
36:01the oath at age 7 differently
36:03than a child who didn't?
36:05And you might hear some
36:08very let's call it ISIS.
36:12Propagating propaganda in the in the,
36:17in the camps.
36:19Particularly preached by mothers,
36:21ISIS brides.
36:22And so does that mean that
36:24you have more reason to know?
36:26So I think that's our first hypothetical
36:30and that isolates solely those in
36:33receipt of potential medical care
36:35who are known members and who you
36:37have reason to know, our Members.
36:39So in criminal law,
36:40we often talk about the men's
36:41Rea and the actus Reyes,
36:43the actus Reyes being what you did,
36:44the men's Rea being what was
36:45in your head when you did it.
36:47That would clearly be probably.
36:49Purposeful you would not.
36:50You would be purposely providing medical
36:53care to ISIS members of ISIS.
36:57Who have not renounced their membership.
37:00That might lead you to
37:02one set of conclusions.
37:03I'd like you to compare your
37:06conclusions to the second hypothetical.
37:09Same board, same NGO,
37:11same international and national
37:13laws of your choice applying.
37:15And you've been asked to
37:17provide medical care.
37:18To a refugee camp.
37:21Where there are some refugees who
37:23are not ISIS brides and some who are.
37:28And you're asked to, in the first instance,
37:31provide medical care to everybody
37:33who needs it in the camp,
37:35indiscriminately, neutrally,
37:36in ways that might be most comfortable
37:39to those of you who are physicians
37:40and have taken the Hippocratic Oath.
37:42Umm. So you at least have
37:45knowledge that they're there.
37:46It might not be purposeful,
37:48but you should know that that's the case.
37:51Very much like the hypothetical
37:52of the Supreme Court,
37:53you're not maybe you,
37:54that NGO that rushed into after
37:55that terrorist attack wasn't
37:57trying to take care of terrorists,
37:59but knew that they likely would if they
38:02took took in everybody who was at the scene.
38:05Or or do you even have liability
38:07if there's something less than
38:09that and there's just that,
38:10that you're being reckless by not
38:13ensuring that there would be no
38:15terrorists receiving your care.
38:16In other words, are we,
38:17should we set the bar even higher and
38:19there's an affirmative obligation
38:21to know almost like a bank has
38:22to do know your customer type and
38:24anti money laundering type things
38:26to ensure that a wire is not being
38:28used to advance terrorist cause
38:30through financing of terrorists.
38:31Are we going to ask medical professionals
38:33to do that now in that situation?
38:35Is that what your?
38:36The board would instruct the general
38:37counsel to consider the bar that
38:39you would suspect your General
38:40Counsel to bring back to you.
38:42So I ask you to think of
38:43those two hypotheticals again,
38:44because they're very real.
38:45Some of you may sit on boards
38:47or may provide care.
38:48In context,
38:49it's very similar to what
38:50I've just described.
38:51Unless we think that this is some
38:54abstract ethical question that
38:55has no practical consequence,
38:57I'll bring the the the constitutional
38:59doctrine to the the concept of
39:02using constitutional law a lot
39:04in US constitutional law to the
39:06forefront of a chilling effect.
39:08And the idea is used often, say,
39:10in the cases of libel cases
39:12or defamation cases,
39:13where maybe the argument
39:14is if you're in doubt,
39:16you're one of the things you'd be worried
39:19about when a newspaper is being sued for,
39:21let's say,
39:22defamation of a of a public
39:24official of of some kind.
39:25You'd be worried that if you
39:27hold newspapers liable to
39:29often that there's this little,
39:31you know,
39:31boundary between what might be
39:33defamation and what might be not defamation.
39:35That might be helpful for the public to know.
39:38And it won't get published,
39:39the theory goes,
39:41because your enforcement of
39:42defamation law in this case creates
39:44a chilling effect that strikes
39:46fear in people who might want to
39:49do something that's not defamation.
39:51But they can't tell.
39:52And that might be something that could
39:54occur here if your rules are too expansive.
39:59And, crucially, going back to Article
40:01three of the Geneva Convention about
40:03the wounded shall be cared for
40:05regardless of their nationality.
40:06That's clearly not something
40:08we believe in this context.
40:09And even if it feels morally right
40:11to you that someone who's made a
40:13statement of affiliation to ISIS
40:15disqualifies them from medical care,
40:17anyone who feels that's entitled
40:19to that view.
40:20I I would ask you to to the question
40:22of would you want a refugee camp
40:24where some people may have made
40:26that pledge and many others didn't?
40:28Would you want those other people
40:30to not be entitled to medical
40:31care because of the few who did?
40:36The third question is who gets labeled as
40:38a terrorist organization to begin with.
40:40And the UN Counterterrorism Center
40:42is one such authority that does
40:45that on the international level.
40:47It was founded, as some of you may know,
40:50by a gift from the Kingdom of Saudi Arabia.
40:53The Kingdom of Saudi Arabia
40:55chairs its Advisory Board,
40:56which puts out advisory documents
40:58regarding who is and is not a
41:01terrorist and what should be done
41:03in terms of counterterrorism.
41:05Some of you may hold different
41:07views than the Kingdom of Saudi
41:09Arabia of who is a terrorist.
41:10And if you do, that might make
41:13you question this just the same,
41:15and I posed the hypothetical.
41:17Again, I'll anonymize the version
41:19I have in my notes that let's take
41:22country A calls ethnic minority B in
41:25their country a terrorist organization.
41:28And you are from a country where Group
41:31B is not really considered anything
41:34other than an oppressed minority group,
41:37and maybe you don't even think
41:39what they're doing should be
41:40considered terrorist at all,
41:42such as peaceful demonstrations.
41:45Would you want a third country to be
41:47able to consider that material support?
41:53Now. The difficulty in caring
41:57for the wounded in new wars,
42:00including those with terrorist organizations,
42:02is not just the fault of the framework.
42:04Again, I I probably raised some scenarios
42:06where you might not have been that
42:08concerned about the ethical implications.
42:09Maybe others you were.
42:12Much of this also comes from the very
42:15urgent concern that the neutrality
42:17of healthcare workers is not being
42:19respected in the battlefield of new wars.
42:21Both because of the practical
42:24difficulties that it's harder to
42:26differentiate when you know that
42:28there is a more urban battlefield
42:30or other environments that are more
42:32difficult to make differentiation in.
42:34And for the reason of course that many folks
42:37conducting things that we now call war,
42:39even if they're not nation states,
42:41particularly non state.
42:42Actors have no respect for the
42:44Geneva Conventions and will
42:46attack healthcare workers.
42:47In fact, as some of you may know,
42:49some of those captured and killed by
42:52ISIS were indeed healthcare workers.
42:56So it's not to say that the it's
42:57all the norms fault and it's
42:59all international laws fault,
43:00but that's the side we can discuss
43:03and can control reasonably.
43:04And I think that some of the
43:06questions we ask today are are
43:09quite important towards that end.
43:11Counterterrorism notwithstanding,
43:12I want to raise one other challenge that
43:16we are facing with respect to conventional
43:19medical ethics in the modern era.
43:22And again,
43:23I will anonymize this scenario,
43:25a particular NGO that is known for
43:28providing medical care to individuals
43:30in need in places that they would not
43:34have access to medical care otherwise.
43:37Uh.
43:37Wanted to enter a particular country
43:41with a particular healthcare need.
43:45And this country said absolutely.
43:49On the condition that you only care
43:50for people who support the government.
43:55And we'll enforce that.
43:58And the NGO said in this particular case.
44:04No, we provide medical care to everybody.
44:10And. What is interesting is.
44:16The country could have said,
44:17well, they're terrorists,
44:18we've designated them as terrorists.
44:21And when you're in our country,
44:22you obey domestic law,
44:23our criminal statutes,
44:24so you can't provide material
44:25support to terrorism.
44:26They're terrorists.
44:27That didn't happen in this particular case,
44:30though.
44:30There's actually one I'm I'm tangentially,
44:33though not personally, aware of,
44:34where a very similar conversation took place.
44:38And So what you're finding is,
44:40as you would expect, NGO's taking
44:41different opinions on this question,
44:43some saying that the principles of
44:47medicine depend on caring for anyone in
44:51need when they enter your care facility.
44:54Others saying.
44:55For any number of reasons,
44:58some perhaps machiavellians,
45:00some perhaps altruistic.
45:03If no one else is going to do this,
45:04someone needs to provide medical
45:06care to someone in this area,
45:08in this territory, in this nation.
45:10And better someone cared for than nobody
45:13cared for in this given territory.
45:15And this dilemma,
45:17just like the counterterrorism dilemma,
45:20is proliferating at a rapid pace.
45:24In fact,
45:25there is one very significant
45:27emergency situation where I do
45:30have direct awareness where.
45:32A particular type of medical care.
45:35Was not allowed to be provided
45:37to those who were perceived to
45:39be enemies of the government,
45:41but to folks who were non combatants,
45:43particularly regarding the care of
45:46women and feminine health needs.
45:51What does that do to our concept
45:54of biomedical ethics?
45:55What decision would you make?
45:56Again,
45:57you're in the boardroom and you
45:58have to make a decision about
45:59whether your organization moves
46:00forward in providing care your your
46:02physician maybe on the ground or
46:03who wants to be on the ground there?
46:06That is challenging how we
46:09think about these questions.
46:11There has also been.
46:15One instance I'm aware of it and
46:16among others that I've read about,
46:18where a group of internally displaced
46:21persons and refugees were in a given
46:23camp and the NGO in question wanted
46:26to go provide medical care to those
46:28refugees and internally displaced
46:30persons and the country said sure,
46:32you just have to check their documents
46:34to see they have valid asylum in our
46:36country before you provide medical care.
46:38Again, that wouldn't be a principle
46:40that you would uphold here.
46:42In fact, as many of you probably know,
46:44you can apply for state health benefits
46:48prior to receiving asylum if you
46:50are a refugee or if you're otherwise
46:53undocumented in some states in the US.
46:56And.
46:58That would be a you would have
47:00a different experience in these
47:02countries and your question would be,
47:03do you obey that principle or not?
47:07So what I'd like to close with and
47:10hopefully keeping with my rough
47:13allotted time from Mark is just
47:15some conclusions and some questions
47:17that I hope we've motivated today
47:19that we might want to think about.
47:24And we know that international
47:28humanitarian law, as we now call it,
47:30laws of war and medical ethics in
47:32times of war, predate World War Two
47:35is the instigating event that causes
47:38a normative cascade globally, the.
47:41Codification of the Geneva Conventions
47:43as we know them today, and so forth.
47:47And they're the norms that we
47:48hold most sacred in this space.
47:50That much is clear.
47:51Care for prisoners of war and
47:53for the wounded.
47:54Differentiation, medical neutrality,
47:55all of these things that are considered
47:58central to our way of thinking about.
48:01International military and law.
48:03But as we've just discussed,
48:06World War Two may not be a good model for
48:09the types of conflicts that occur today.
48:12Both because.
48:13Counter there are terrorist
48:15organizations and non state actors
48:17who engage in things that we
48:20would have called something like
48:22war that occurs between nations.
48:24And because there are questions of
48:27providing care in contexts that might
48:30not have been envisioned in the same
48:32way or might not have been thought of
48:35as a problem in the same way before,
48:39before the the new War
48:41era and the post 911 era.
48:43Thinking,
48:43for example,
48:44of that NGO told they can only
48:46provide services in a country
48:48if they only provide them to
48:50supporters of the government.
48:52So.
48:52With these challenges come questions
48:55of where we'll go from here,
48:58and we have many unanswered questions
49:00that will probably want to address.
49:05Is the way we think of.
49:08Biomedical ethics and the ethics
49:10around medical care in times of war.
49:13Still suitable for today's world?
49:15Can they handle? Can they?
49:17Can they just absorb our
49:20counterterrorism law framework?
49:21Can they just absorb questions of when
49:24a country says you can only provide
49:26medical services in our country if you
49:28only help supporters of our government?
49:31Or do we need something different?
49:34Do we need to just?
49:36Narrow the scope of of material support.
49:39Do we like the scope of material
49:41support and counterterrorism law?
49:42We wish to keep it as it is.
49:45Are if even if we address our
49:47material support questions,
49:48are there other questions that we still
49:51need to to address that we're not sure of?
49:54Is there scope,
49:55and I think this is an open
49:57research question,
49:58for a healthcare version of the R2P doctrine.
50:02The responsibility to protect doctrine,
50:04responsibility to protect is a
50:07international norm that suggests that
50:10if a government is unwilling or unable
50:13to protect its own people from harm,
50:16either because they are.
50:18Making the harm themselves or because
50:21there is another entity that is harming
50:23the citizens of their country and
50:25they are unable or unwilling to do so.
50:28Think,
50:28for example,
50:29of the Assad regime being Bashar al-Assad,
50:32the head of state of Syria
50:34during the ISIS era.
50:36Then there is a then that responsibility
50:40from that government is clearly not met.
50:43And it entitles intervention by
50:45the international community and
50:47responsibility to protect came out
50:49of a need for an understanding of
50:51when it's right to intervene and
50:53what might look like a domestic
50:56conflict in another country.
50:58Is there a scope for some sort of
51:01healthcare responsibility to protect that?
51:02Maybe you could help that NGO who
51:05can only help people if they only
51:07help supporters of the regime
51:09make the decision that they can,
51:11can or can't provide healthcare?
51:12Whichever way the norm would fall
51:14based on an analysis of whether
51:16the state is unable or unwilling
51:18to provide healthcare to people
51:20in their within their borders.
51:22Is there another normative framework
51:24that would be more helpful that
51:26might be more consistent across
51:28the situations I'm describing?
51:30And I leave you with those questions
51:33knowing that there's no simple solution,
51:36particularly in the space of
51:38counter terrorism,
51:39where obviously there are very
51:42significant concerns for safety
51:44and well-being with respect to
51:47counterterrorism efforts to begin with,
51:49but with the realization that the that
51:52the consequences of our norms are
51:54much more complicated than they may seem.
51:56I particularly remember minutes
51:58from a UN Security Council.
52:00Meeting where a particular,
52:02I presume ambassador but might have
52:04been another state official from a
52:06from a government said something
52:08about the this very issue of of
52:11prosecution of of those providing
52:12medical care and terrorist circumstances
52:14and said something to the effect of.
52:16I don't really think we thought
52:17about that when we were writing this.
52:19We were thinking more of what you
52:21might conventionally think
52:22of as material support to terrorism
52:23particularly terrorist financing.
52:24In fact, there's a whole UN Security
52:26Council resolution about terrorist
52:27financing specifically because of
52:29what essential concern this is.
52:30So I think that between intended
52:33and unintended tensions between
52:34these two areas of international
52:36law and international norms,
52:37I encourage you to think about how
52:39this would affect your own decision
52:41making in a circumstance as any number
52:44of stakeholders and what you think
52:46is normatively right as as you and
52:48continue to ingest the debate that is
52:50going to continue in public spheres
52:52about how this should proceed and how
52:55our norm should proceed moving forward.
52:57So with that I thank you all once again,
52:59I think Mark once again.
53:00Need to take any questions and and thank
53:02you for for an incredible afternoon
53:04with amazing other speakers as well.
53:05Thank you.
53:06You want me to stay here?
53:10So we will, we have to,
53:14we can take questions from the audience.
53:15We have time for one or two questions before
53:17we get to next to David Marbles talk.
53:19So if anyone in the office,
53:21we have the microphones on each side. Yeah.
53:22A gentleman right here, please, Karen.
53:33Thank you for the interesting talk.
53:35Could you comment on whether there is
53:38any international law in dealing with
53:42non state terrorist actors for instance?
53:45I mean Israel deals with this all the time.
53:48There's an ambulance trying to come to a
53:51hospital in Jerusalem from the territories,
53:54and there's a suicide bomber
53:56that's hidden in the ambulance,
53:58so there's a delay for that ambulance
54:01and there might have been another patient
54:05there who suffers some medical poor outcome
54:09because ambulances stop for a search.
54:12What's the liability of the
54:14Israelis in that situation?
54:16Or on the other hand?
54:18If Islamic Jihad is fighting missiles
54:21adjacent to the large hospital in Gaza City,
54:26what is Israel's responsibility there?
54:30Great, great questions.
54:31So I'll take them in reverse order.
54:34The question of say you identify
54:36your you're part of IDF,
54:38you identify a potential target that
54:40you want to strike because you know
54:42that there's a certain military
54:44capacity of that target site.
54:46Maybe there's an imminent threat.
54:47You have two.
54:49Analysis You must conduct,
54:51you must do a necessity analysis is
54:54it necessary for you to strike this
54:56necessary being defined as necessary
54:58to advance your national interests,
55:00such as the safety of your own citizens?
55:02And is any civilian casualty or
55:04damage that may occur proportionate
55:06to what you are trying to prevent?
55:10And the question I think that is
55:13under underlying your question
55:15is beyond the subjective.
55:16How do you know when it's necessary and
55:18how do you know when it's proportionate?
55:19Is how do you determine both of those
55:22things and the idea of international
55:25laws approach to that question is one of
55:28obligation that scales with your capacity,
55:31so.
55:33Nation A that is very
55:36technologically sophisticated,
55:37that has all sorts of heat seeking
55:38and other technologies I probably
55:40don't know about to help you determine
55:42who's standing where and what the
55:43probability is that they would get
55:45struck by a strike on the site,
55:47including secondary damage.
55:48So if you know their missiles in
55:50there and you bomb the missiles,
55:52so not just your bomb explodes,
55:53but the missiles you're bombing explode,
55:55and you can calculate that because
55:57of the technology available to you
55:58and the experts available to you,
55:59then you do have an affirmative
56:01obligation to do that if you do not.
56:03But it's still necessary to strike the site,
56:05your nation be in this case, you.
56:07You have to strike the site as
56:09you determine it,
56:09and your ability to calculate
56:11proportionality is much more limited.
56:13International law doesn't obligate you
56:14to go out and find a way to get the
56:17excellent technology to do that much
56:19more sophisticated analysis before you do it.
56:21In other words,
56:22your obligation is related to your
56:23capacity in that moment as the state.
56:25So if you couldn't have
56:27known for some reason,
56:28such As for example civilians
56:30let's say are being held prisoner
56:32in the in the basement.
56:33Of this of this site.
56:35And so you're you have no way of knowing that
56:37because you're maybe it's some sort
56:39of roof over the basement that your
56:41technology can't see through then
56:43you're not obligated to consider the
56:44proportionality of those hypotheticals
56:46of what if there's such a basement.
56:48So that's how you handle the the second
56:50situation by doing the necessity
56:52and proportionality considerations
56:54the the first question of the
56:57ambulance headed into let's take it
57:00as the the Home Countries hospital.
57:04Carrying either someone who needs
57:06medical care, who is not a combatant,
57:09maybe someone who needs medical care who is,
57:11but certainly you're you're
57:12hypothetical someone who does
57:14not need medical services at all,
57:16who's who's a combatant,
57:17who's trying to use the safety of
57:19appearing to be a medical service
57:21provider in order to conduct an attack.
57:24This actually prompts one of the
57:26very challenges that I pointed to,
57:29which is that of course,
57:30a lot 1 easy rebuttal to the comment
57:32that the Geneva Conventions.
57:34Don't hold up in today's world
57:36is just to say,
57:38well that's because there's some
57:39actors who don't respect them.
57:41And so if the Red Cross symbol from
57:43the first Geneva Convention on your
57:45on your armband or on anywhere means
57:47that you're a medical provider,
57:49the moment someone starts to abuse that,
57:51be it a state actor or a non state actor,
57:54of course the whole system starts
57:55to break down.
57:56So I think what that goes to more so
57:58is that is that potential counter
58:01argument that second source of problems.
58:04Thank you for the great questions.
58:05Thanks.
58:06Thank you very
58:06much. Andrew. We're going to
58:08that's going to have to say that's
58:09it for this talk in the interest
58:10of time. That was terrific.
58:11Thank you. Thank you so much.