Thesis on protecting non-combatants in war

29 September 2011

Justin Emerson

A close study of the protections afforded to civilians during a time of armed conflict has earned a senior officer in the Zealand Defence Force an LLM with first class honours.

Lieutenant Colonel Justin Emerson, Deputy Director of Defence Legal Services, was awarded his degree at a Spring Graduation ceremony on 20 September.

“Direct participation in hostilities”, the subject of his thesis, is “a vexed and contentious notion in international law”, says Justin. The phrase is drawn from Protocols to the 1949 Geneva Conventions specifically protecting civilians “unless and for such times as they take a direct part in hostilities”. In short, explains Justin, it “addresses the specific question of when civilians can be lawfully killed on the battlefield”.

The International Committee of the Red Cross (ICRC) examined this question in a 2009 paper offering “interpretive guidance” on direct participation in hostilities under international humanitarian law.

Justin analysed the paper from a New Zealand perspective, using our operations in Afghanistan as a litmus test. He found its proposals “overly complex and incapable of being translated into rules of engagement for the use of armed forces” and “may even increase the risk to civilians during armed conflict”. They failed “to advance and promote the important principle of distinction in warfare between combatants and civilians”.

Justin hopes his thesis will act as a useful sounding board against which decisions about NZDF operational deployments and rules of engagement can be made.

Justin has long combined his aptitude for law and the military. After completing an LLB honours degree at Victoria University in 1988 he spent the two years working in commercial law at Rudd Watts & Stone in Wellington. “Whilst this was a rewarding start to a career in law, I knew that the more business-oriented fields of law would not expose me to the leadership attributes I wanted to develop.”

Joining the NZ Army he completed a year-long officer training course in 1991 and graduated into the Royal NZ Infantry Regiment. After a sound grounding in the combat arms, including an operational deployment as an Infantry Captain to the Sinai, he transferred to Defence Legal Services in 1997.

In this capacity he has been deployed on operations in East Timor, Afghanistan, and the Arabian Gulf. “The challenges of operating as a legal officer on operations require a dynamic approach to satisfying the legal needs of the client whilst ensuring strict compliance with the law of armed conflict, rules of engagement, and other relevant international instruments.”

Justin has served in equally demanding roles including the Director of Personnel Law for the NZDF, and the Chief Legal Adviser to Joint Forces NZ. In 2006 he was made a Member of the NZ Order of Merit for legal services to the NZDF.

His taking until 2010 to find a suitable career “window” to undertake his masters attested to “the challenges and operational tempo the NZDF has been facing over the past decade”. He was aware of senior lecturer Treasa Dunworth’s reputation and her active interest in the area of international law he intended to study, and she became his supervisor.

Studying primarily from Wellington “did not pose any significant difficulty”. The national reciprocal borrowing scheme for New Zealand’s university libraries allowed him to spend considerable time at Victoria’s Law Library.

He travelled to Auckland several times over his ten months of study to research at the Davis Law Library, and to meet with Treasa. “She was a constant source of encouragement throughout. She assisted me in rewiring my brain from ‘instant problem-solver’ to ‘contemplative intellectual’, two separate but equally important skills in the practice of law.”

Justin says that in completing his masters he has contributed to an international debate about an important and as yet unresolved aspect of the law that governs human conflict. “It has been of considerable assistance to my professional development as both a lawyer and strategic thinker.”