In-depth: Civilian Protection in Armed Conflict
AFRICA-ASIA: Part 2: Implementing International Humanitarian Law
Explaining international humanitarian law and the Red Cross principles to local militiamen
NAIROBI, 3 March 2003 (IRIN) - The key role of the ICRC
The International Committee of the Red Cross (ICRC) has a specific mandate under the Geneva Conventions on the conduct of war to protect and assist victims of armed conflict and internal violence - though many other humanitarian and development agencies have become involved in offering protection and relief.
If fact, the mandates that diverse humanitarian organisations take unto themselves need to be addressed because "very often, they concentrate on access without reference to this duty to protect" and without fully understanding or appreciating their responsibilities under IHL, according to Francoise Bouchet-Saulnier, legal counsel for Medecins Sans Frontieres (MSF).
The ICRC operates on the basis of an ethical framework known as its fundamental principles. Over time, the Red Cross principles have come to guide and position other humanitarian agencies in their roles of assisting and protecting those outside the limits of war in practical yet ethical ways.
The Red Cross movement developed its principles of humanitarian action in particular from its "three substantive principles" of humanity, non-discrimination and proportionality.
For the ICRC, the principle of humanity - from which all other principles flow - means that mankind "shall be treated humanely under all circumstances." The principle, in turn, has three elements: prevent and alleviate suffering; protect life and health; and, assure respect for the individual.
The second substantive principle of non-discrimination holds that the ICRC shall "come to the help of each individual, equally and without any form of discrimination."
This underpins the idea of the humanitarian imperative to offer and receive assistance on the basis of need, without discrimination on the basis of nationality, race, religious belief, class, political opinion or other criteria (beyond need).
It also means that the ICRC has a universal vocation, a mandate that "must extend to all men, in all countries - and other humanitarian agencies have claimed the same entitlement.
The third substantive principle, is that of proportionality, under which the ICRC says it is imperative to "relieve the suffering of individuals in proportion to the degree of their suffering, and to give priority according to the degree of urgency." In this light, for instance, the ICRC operates on the basis that only urgent medical reasons will authorise priority in order of treatment of persons requiring it.
The ideas of non-discrimination and proportionality are sometimes combined under the principle of impartiality, which is listed by the ICRC as a derivative principle - along with neutrality and independence.
These three derivative principles (derived, that is, from the substantive principles) form the basis of day to day operating principles and procedures for the ICRC, which it hopes will assure it of the confidence of all parties to conflict situations, and thus the humanitarian space to operate.
Impartiality and Independence
Providing impartial assistance is a key challenge, especially in a war situation, Credit: UN DPI
By impartiality, the Red Cross - and other humanitarian actors since - mean that assistance is delivered to all those who are suffering, based only on their needs and corresponding entitlements.
Thus, humanitarian agencies are supposed to be ready to come to the help of each individual, equally and without any form of discrimination, without submitting to limitations, by virtue of the needs of vulnerable people and on the basis of their shared humanity.
"We do not ask a suffering man what country he comes from, or what his religion is, but say simply that he is in pain, that he is one of our own and that we will give him relief," the ICRC states, quoting Louis Pasteur.
Impartiality, the organisation says, involves applying established rules, recognised as valid, without taking sides either for reasons of interest or sympathy.
The humanitarian principle of impartiality implies that humanitarian agencies should respond to the needs of the civilian population as a whole, regardless of the authority under whose control they find themselves, and address the most urgent needs first.
By independence - in its political, religious and economic aspects - the Red Cross means that it must be sovereign in its decisions, acts and words to show the way towards humanity and justice. It emphasises its independence with regard to outside forces, in governments and intergovernmental organisations.
The movement says it asserts its independence by refraining from any involvement in internal or external politics in the situations in which it works, and excluding any intrusion of politics into its own sphere of action. It resists pressure of any social or economic character to turn it from the path defined for it by its objectives.
That independence, according to the ICRC, is also the guarantee of neutrality, which is essential for humanitarian workers. Neutrality means to the Red Cross movement that it "may not take sides in hostilities [or armed conflicts of any kind] or engage at any time in controversies of a political, racial, religious or ideological character."
To retain confidence in its relations with state and non-state actors in conflict situations, the ICRC says, it treats the people with whom it engages "on the basis of equality, not expressing itself on their legitimacy, not considering whether they are recognised, not judging their politics."
As a general rule, it also abstains from making public pronouncements about specific acts committed in violation of law and humanity, and attributed to belligerents - preferring to follow what it calls a "persuasive, non-denunciatory approach" and share its findings, where it can, through "a constructive and confidential dialogue."
Protection in the field
The humanitarian principles framework, grounded in the rights of non-combatants to assistance and protection, is intended to allow for concentration on the most vulnerable (including displaced persons, women, children and missing people) without losing sight of the overall aim of protecting the civilian population.
On a practical level, humanitarian organisations in situations of armed conflict are generally working to provide at least a minimum of protection to civilians affected.
This may include establishing a presence on the ground, negotiating humanitarian access, preventing breaches of humanitarian law, ending such breaches or limiting their effect when they occur, and/or providing for the prosecution of individuals and parties violating the rights of civilians.
In terms of assuring respect for civilians, ICRC staff (and others) working in the field in situations of violence endeavour to assess living conditions of the population, analyse cases of abuse and violations of international law, identify any shortcomings or needs, and monitor those people who are particularly vulnerable.
Humanitarian agencies aim to ensure that all parties to a conflict provide individuals and groups with the full protection entitled to them under international law, and to take specific measures to ensure their safety in situations of military engagement.
Relief agencies also work to protect civilians by negotiating access to vulnerable groups - their very presence often, but not always, serving to protect civilians - and by providing material and medical relief.
Michel Kassa, head of the UN Office for the Coordination of Humanitarian Affairs (OCHA) in the Democratic Republic of Congo, noted the degree to which humanitarian actors there and elsewhere put themselves in danger in addressing their humanitarian imperative.
"We risk our lives dozens of times each year in order to protect civilians," he told IRIN.
Access and security are the two principle challenges the humanitarian agencies and supporting donors consistently run up against, according to Elissa Golberg, Deputy Director of the Human Rights, Humanitarian Affairs and International Women's Equality division of Canada's Department of Foreign Affairs and International Trade.
"That's access to the actual affected, civilian population, and physical security of civilians, as well as humanitarian workers," she said. "… 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."
In doing its work, the ICRC establishes and maintains what it calls a confidential dialogue - both preventive and corrective - with civil authorities and armed actors regarding humanitarian issues, reminding them of the norms and principles of international law, recommending necessary courses of action and conducting follow-up activities.
Humanitarian agencies on the ground often liaise with donor countries to get them to use their diplomatic influence to prevent, publicise or bring a halt to violations of IHL, rather than going public themselves, which often carries the risk of endangering aid workers or programmes.
Occasionally, where there are grave concerns and/or where confidential, diplomatic engagement has brought no results, the ICRC reserves the right to make public its concerns about violations of IHL.
"You have this variety of agencies on the ground and not everyone is going to be comfortable speaking out on issues, like an Amnesty or Human Rights Watch," Golberg told IRIN. "But that's OK, that's just one kind of protection. Humanitarian agencies can do other things to enhance the safety of their beneficiaries."
As part of its prevention action to limit civilian suffering, the ICRC promotes:
- adoption of new treaties to make IHL more effective and respond to new needs that arise
- ratification and use by states of laws, tools and measures to give effect to these instruments at national level
- awareness and education programmes to make sure armed actors know of, understand and act upon their responsibilities to protect civilians in times of war
It also pays particular attention to promoting the restriction or prohibition of weapons - such as landmines - that "have indiscriminate effects or cause superfluous injury or unnecessary suffering" to communities, and especially to civilians.
The need for implementation of IHL
Children in the mud in Maslakh IDP camp, Herat, western Afghanistan, in 2002
Credit: HARTLIEB Julia\IOM
Advocates of IHL emphasise the central importance for its implementation - and, therefore, for the protection of civilians - of the role of individual states.
The way forward lies in states adopting, ratifying and codifying in national laws the various conventions and protocols on the law of armed conflict, and assuring its implementation on the ground.
Just as national governments have the primary responsibility to assure the safety and protection of their civilians, in times of peace or violent conflict, so national courts have a clear obligation to bring to court those accused of grave breaches of international humanitarian law and national laws based upon it, according to the ICRC.
But while the application of IHL is primarily the responsibility of states and other parties to armed conflict, other states are also bound by the Geneva Conventions "to respect and ensure respect for those rules in all circumstances".
This implies "that we must prosecute those who break these laws," says Gnaedinger, because to ignore the crime is to deny justice to the victims of war crimes, crimes against humanity and other atrocities.
In June 2001, for instance, a jury of the Brussels 'Cour d'Assises' [Crown Court] in Belgium declared four Rwandans guilty or partially guilty of war crimes committed during the 1994 genocide.
But with states frequently failing to protect civilians as called for under IHL, or to bring perpetrators of war crimes and crimes against humanity to justice, there has been a growing trend of internationalising individual responsibility for certain heinous crimes.
The International Criminal Court (ICC)
In 1998, the Rome Statute on the International Criminal Court paved the way for the establishment of a permanent court capable of prosecuting individuals allegedly responsible for serious breaches of IHL - and with jurisdiction over crimes regardless of when or where they were committed.
Rights and justice campaigners have emphasised the importance of the ICC:
- To help achieve justice for all, by filling a gap in the international legal system by dealing with individual responsibility as an enforcement mechanism.
- To end impunity by establishing the principle of individual criminal accountability for all who commit crimes against international law as a cornerstone of international criminal law.
- To help end conflicts, since violence often begets further violence, by providing the deterrent that at least some perpetrators of war crimes or genocide may be brought to justice
- To remedy the deficiencies of ad hoc tribunals, which immediately raise the questions of 'selective justice', by establishing a permanent court that can operate in a more consistent way and regardless of the time and place in which atrocities occurred.
- To take over when national criminal justice institutions are unwilling or unable to act since, especially in times of violent conflict, institutions may have collapsed or national judicial systems lack the political will to pursue their own citizens.
- To deter future war criminals by establishing more clearly that atrocities will not go unpunished.
The UN High Commissioner for Human Rights, Sergio Vieira de Mello, hailed the inauguration of the ICC on 11 March as an historic "reaffirmation of our commitment to human rights, fundamental freedoms and justice." He stressed, however, that only 89 countries had ratified the Rome Statute establishing the court - which, he said, was "far from universality" - and that wider acceptance of its jurisdiction will be necessary to make the Court truly effective.
"The creation of the ICC represents a major step forward in an environment hitherto characterised by impunity, but a step that will only bear fruit if national legislation and actions become truly complementary to those of the ICC," according to Angelo Gnaaedinger of the ICRC.
But while more rigorous prosecution of grave breaches of IHL should act as something of a deterrent, humanitarian workers say it is important that the international and humanitarian community must also raise public awareness and mobilise opinion each times the rights of victims are ignored or flouted.
They also call for extended advocacy for IHL, both with combatants and by giving lessons in humanitarian law in schools and universities, and the provision of proper instruction in military training establishments.
"We must finally recognise," according to the ICRC's Gnaedinger, "that protecting the victims of conflict cannot be limited to emergency action - when we know how often such action is doomed to failure.