The proliferation of small-arms is just one of the challenges faced, Credit: UNICEF |
Resident or displaced civilians are often specifically targeted for violent attack, rather than war affecting them incidentally, and this has led to an unacceptably high toll on human life and livelihoods, according to the International Committee of the Red Cross (ICRC).
At the UN Security Council in November last year, UN Secretary-General Kofi Annan said: "The toll of dead and wounded - particularly among innocent civilians - has risen to levels that can be described, without any exaggeration, as appalling."
He highlighted Sudan, saying aid workers "have collectively been dismayed by the recent pattern of attacks on civilians, humanitarian workers and facilities, including the shameful attacks on civilians at or near food distribution sites".
He also cited the case of Angola, where, he said, more than a third of the population - over 4.5 million people - had been displaced as a result of a conflict that lasted for more than 30 years.
In Afghanistan, a quarter of a century of war has taken a heavy toll on the population of Afghanistan, causing the death by violence or disease of millions of people. Millions more Afghans are still locked in abject poverty, and the country has among the worst social and human welfare indicators in the world.
In the DRC, the humanitarian consequences of war in the east - driven substantially by the scramble for the illegal exploitation of Congo's natural and mineral resources - have been horrific, according to a panel of experts investigating the problem in a report in October 2002.
In the five eastern provinces of the DRC, the number of excess deaths directly attributable to the Rwandan and Ugandan occupation between 1998 and September 2002 had been between three million and 3.5 million people, the panel said.
And these are just some of the violent conflicts - admittedly towards the worst end of the scale - that continue to challenge the international community but, more particularly, civilian populations living in danger and misery.
Yet the humanitarian imperative, according to Kofi Annan, means working "to establish human security where it is no longer present, where it is under threat, or where it never existed."
IHL requires all belligerents to protect civilians in times of armed conflict, Credit: IRIN |
Protection under International Humanitarian Law
International Humanitarian Law (IHL) lays down the minimum protection and standards applicable to situations where people are most vulnerable in armed conflict. It aims to prevent situations that might exacerbate vulnerabilities, such as displacement and destruction of civilian property.
International humanitarian law demands of belligerents that they respect the principles of distinction (between combatants and non-combatants), proportionality (of violence used) and precaution (against disproportionate effects of military attacks on non-combatants) in using violent means in situations of conflict.
Perhaps the most important of these, certainly in relation to civilian protection is that of distinction, which underpins the Geneva Conventions and their additional protocols.
This requires combatants to distinguish between those actively engaged in hostilities, on the one hand, and civilians and others (including the sick, wounded and prisoners of war) on the other. It also demands that combatants distinguish between civilian objects and military objectives. Non-combatants are protected under international humanitarian law and entitled to immunity from attack.
In that regard, international humanitarian law plays the role in time of war or violent conflict that human rights law plays in peacetime, guaranteeing fundamental rights for each individual.
According to the ICRC, the law of armed conflict: - Protects, in armed conflict, all who do not, or who no longer, take part in hostilities: civilians, wounded and sick soldiers, prisoners of war
- Strives to prevent parties to an armed conflict from resorting to criminal methods and indiscriminate or disproportionate use of force
- Forms part of the international legal framework that aims to uphold human dignity and protect people from arbitrary treatment
Violations of IHL
In defiance of international humanitarian law, deliberate acts against civilians still result in terror, starvation, sexual violence, disappearances, the use of children as fighters and families being torn apart and forced disappearances, according to Angelo Gnaedinger, director-general of the ICRC.
Among the key issues that often arise, in the context of humanitarian emergencies and armed conflicts, are: securing access to affected civilian populations and the physical security of civilians and humanitarian workers.
"We're constantly having to call for full and unhindered access, respect for civilian populations, respect for [humanitarian] emblems, and making sure that all parties recognize the need to ensure the safety and security of aid workers," says Elissa Golberg, Deputy Director of the Human Rights, Humanitarian Affairs and International Women's Equality Division of Canada's Ministry of Foreign Affairs and International Cooperation.
The nature of war is also changing, as conflicts become increasingly inter-related (whether at local, national or regional level) and the means of warfare evolves, including the deliberate targeting of civilians and the waging of war for specifically economic motives.
More and more conflicts involve the targeting or forced displacement of civilians - as warring parties fight over territorial control, as a means to weaken enemy forces by targeting host or supportive communities, or to access natural resources.
The parties involved are changing and proliferating, including non-state actors with uncertain chains of command that make dialogue and negotiation difficult and dangerous.
"The fact that, in a lot of circumstances, we're seeing armed groups that don't have standards 'command and control' functions, that don't operate with standard military rules of procedures; that sometimes they're child soldiers, who are on drugs or who have been kidnapped - this is obviously complicating the environment," Elissa Golberg told IRIN.
As warring parties fight over territorial control, as a means to weaken enemy forces by targeting host or supportive communities, or to access natural resources, more and more conflicts involve the targeting or forced displacement of civilians.
The humanitarian imperative involves more than the provision of basic needs, Credit: OCHA |
The role of aid agencies
On the other side of this equation, humanitarian agencies are bound by principles of neutrality, impartiality and independent action in the conflict situations - foregoing political engagement in order to safeguard access for humanitarian assistance.
The nature of this is captured in the idea of 'humanitarian principles', which derive from international humanitarian law. These at once establish the non-aligned role of (neutral, impartial, independent) humanitarian agencies in situations of violence and protect the "humanitarian space" required by agencies to assure the safety and well-being of civilians (and other categories of 'protected persons').
These are sometimes further elaborated in ad hoc ground rules, Memorandums of Understanding (MOUs), or other arrangements which establish a basis for "principled humanitarian action" - setting out expectations and responsibilities of different parties in implementing humanitarian principles in a particular situation, thereby controlling the conduct of war and allowing for the coordination of humanitarian activity.
Such agreements initially focused on the behaviour expected and required of armed groups but the mutuality of the agreements has since become a focus for the obligations, and accountability mechanisms, of humanitarian agencies as well.
However, there are also voices of caution within the humanitarian community about over-stretch of agencies' mandates, responsibilities and abilities - especially as political actors have "backed off" from certain situations - and of getting involved in areas where the humanitarian imperative is clouded, and the protection afforded under IHL less clear.
"Physical protection is a matter of power - of police, armies or whatever - and no NGO or humanitarian organisation will be able to provide physical protection to people that are going to be bombed," Francoise Bouchet-Saulnier, legal counsel of MSF, told IRIN.
"When IHL refers to protection, it refers to the defence of the legal status and the rights of civilians, and other 'protected persons', in times of conflict. It states different kind of responsibilities for the respect of these rights: armies and belligerents should refrain from attacking civilians directly and should not deprive them from relief.
"Humanitarian organisations have to monitor the level of protection given or refused by the belligerents to civilians and to provide necessary relief to civilians."
If it is an aim of war to forcibly displace people, there is no way - except by force - that you can stop this, Bouchet-Saulnier noted. What humanitarian organisations can do is bear witness to the pattern of violence imposed on populations and, in so doing, doing so, "trigger other mechanisms of responsibility that are not humanitarian but, rather, political or military."
Similarly, a senior policy worker spoke told IRIN of the danger, especially since the Rwandan genocide in 1994, of humanitarian organisations rushing to fill the vacuums left in many crises by political actors - thus, overreaching themselves in terms of responsibilities and mandate, and dangerously blurring the distinction between humanitarian and political actions that it had taken so long to establish.
UN Secretary-General Kofi Annan has been active in pursuit of a "a culture of compliance" on civilian protection
Credit: UN |
Culture of protection
Unfortunately, the global "culture of protection" of civilians called for by UN Secretary-General Kofi Annan is still a distant prospect. In short, civilians are in dire need of protection and assistance in crisis situations around the world.
Addressing the UN Security Council in November 2002, Annan spoke of practical actions required for the protection of civilians, including the need to: secure humanitarian access; separate clearly civilians and combatants; and re-establish swiftly the rule of law, justice and reconciliation during post-conflict transitions.
The Secretary-General also highlighted three new and significant challenges faced by humanitarian actors and the international community in conflict environments. Gender-based violence, the harmful consequences of the commercial exploitation of conflict, and the escalating threat of global terrorism were also cited as concerns.
IHL emerged from efforts to address the limits of war between state actors and its relevance today has been challenged in recent years given the changing nature of and parties to war.
War crimes against civilians, often but by no means exclusively carried out by armed non-state actors, and the impunity these groups appear to feel - apparently confident that they will never be called to account for their deeds - is a particular threat to the perception and relevance of IHL in armed conflicts, according to humanitarian observers.
There are wholesale denials of humanitarian access, intimidation, kidnapping and targeting of aid workers, inadequate government efforts to protect civilians or bring the perpetrators of crimes to justice, and a slew of other challenges to IHL.
Apart from terrorism, which is a clear and deliberate threat to non-combatants and a violation of IHL, the US 'war on terrorism' (as presented mainly by the US government, but also by other state parties) threatens the whole IHL system, according to Francoise Bouchet-Saulnier, legal counsel of Medecins Sans Frontieres.
"This concept opens up a time of long-lasting war, while refusing to respect the legal framework for wartime," she told IRIN.
"It's very tricky to try to create a new kind of war (which will be 'the war against terrorism', which is a non-existing body of law) that creates an empty space, rather than creating a framework for this action," she said.
The key point is that if you resort to the use of armed forces, whoever you are, then international humanitarian law automatically applies, Bouchet-Saulnier added.
Analysts have also identified the possible co-option of humanitarianism for political ends as a real challenge to humanitarian agencies working on the ground to implement IHL.
In 'A Bed for the Night', journalist David Rieff highlights the dangers of humanitarians, despite the best of intentions, often sacrificing the core principle of impartiality - the provision of assistance to vulnerable people on the basis of need - in a misguided effort to expand the sway of democracy and human rights.
There is a real danger, especially in times of large-scale war, of humanitarian agencies accepting the militarisation of their role and becoming little more than sub-contractors to governments of military-political blocs.
Another challenge is that, in certain crises, a wide range of activities may be carried out under the banner of humanitarian action or 'relief', some of which run counter to traditional ideas about humanitarianism, including independence, impartiality and independent action.
"Today, the word humanitarian is a label that tends to be used for a wide variety of activities undertaken by actors who do not meet the humanitarian law concept of an 'impartial humanitarian organisation'… operating under very different forms and legal conditions," according to Francoise Bouchet-Saulnier of MSF.
In southern Sudan, for instance, observers have noted a wide range of nongovernmental actors, including profit-making corporations, and with different religious, political and economic motivations, working to different ends yet variously describing their work as humanitarian - thereby blurring the humanitarian imperative.
Work outside established humanitarian principles - by agencies with varied motivations and operating procedures, not all grounded in IHL - could have serious negative consequences, whether by escalating conflict itself or by eroding the tense, fragile relationship between belligerents and humanitarian actors that humanitarian principles define.
IFRC president Manuel Suarez del Toro |
But humanitarian law has ample provision for dealing with modern methods of warfare, the issue of non-state actors, the threat of terrorism and other aspects of armed conflict, according to its advocates.
The challenge is to have those provisions respected and put into practice by all, according to ICRC president Jakob Kellenberger. The laws of war do not put obstacles in the way of fighting crime and terror, he says; they identify serious crimes and demand punishment for them.
The question, as far as the ICRC is concerned, is not "does the law work?" but "do we want it to work?"
Respect for IHL must be complemented by actions to address the causes and effects of conflicts, such as poverty, inequity, intolerance and discrimination, and to promote humanitarian values of tolerance, non-violence and peace, according to Manuel Suarez del Toro of the IFRC.
"We need to work at creating a culture of respect, understanding and lasting peace," said Suarez Del Torno. "And in the event of a crisis or conflict, we must urge all parties to use dialogue and negotiation as a means to resolve conflicts, not violence."
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