IRIN Interview with James Darcy, Research Fellow, Humanitarian Policy Group of the Overseas Development Institute, Britain
QUESTION: Is there some confusion between a general sense of protection of civilians and the concept of protection provided for under international humanitarian law?
ANSWER: There are, loosely speaking, two schools of thought. The traditional school would limit the concept of protection to the kind of provision that is made in the Geneva Conventions and protocols - and that is a relatively narrow version.
It's primarily based around a set of obligations on warring parties to refrain from certain sorts of actions in the way they conduct war. It's about setting limits on the conduct of war.
The other school of thought takes a broader approach, based on protecting human rights, but this is less well defined. There's very little - almost nothing - in the Geneva Conventions about rights. In fact, rights is not a concept that particularly informs the Geneva Conventions. It's about duties, and about setting limits on conduct more than anything else.
At a conference recently on The Responsibility to Protect (the Canadian-inspired initiative) one of the interesting things that emerged, for me, was that people were, at certain points, talking about very different conceptions of protection.[document at www.dfait-maeci.gc.ca]
There is some confusion between the traditional, rather narrow, 'responsibility to refrain' from certain kinds of action (attacking civilian targets and so on) and a much broader concept of proactive protection, requiring active intervention by third parties in certain circumstances to protect civilians - encompassing prevention of violent conflict and post-conflict reconstruction, as well as response to violations.
It was broader also, in the sense that it ranged across the spectrum of human rights, so that we started to talk about any action that looked to protect human rights, although armed intervention to protect people is envisaged only in the most extreme cases.
I think there's a need for greater clarity on this: how broad within the human rights spectrum you're going to look at. I think you can, plausibly, fit traditional concepts of protection within a human rights framework, but how small a subset of that human rights framework should we be concerned with?
There are important consequences that flow from how broadly, or narrowly, you set the parameters on this, both in terms of institutional policy and general strategies.
Q: Would ODI's concept of protection be the broader or narrower one, and how does protection fit into the humanitarian policy framework?
A: Firstly, I think we need to be aware of the distinction; if we're not aware that we're talking about different things at different times, then we've got a problem.
We would start with the narrower conception. Indeed, I think there is a case to be made for keeping the concept of humanitarian protection relatively narrow - just as there is an important sense in which the whole humanitarian project should be seen to be a limited one, and part of its value lies in its limits. It doesn't seek to do certain sorts of things and that would apply to assistance strategies as much as protection strategies.
There is a strict limit on what kinds of outcomes it's possible to achieve through humanitarian action and I think it's important to recognise that - and to recognise the limits of responsibility that go with that.
Humanitarians have often been very good at taking on themselves responsibility for things that actually are not their responsibility. Often they do not have the means to fulfil their stated objectives, and in attempting to do so, they blur the lines of responsibility. I believe that we need to define those responsibilities very clearly.
But of course it's a crucial part of the humanitarian endeavour both to identify those responsibilities and to pursue a strategy to achieve their fulfilment… what the ICRC would call résponsibilisation - in other words, holding responsible those who are responsible for the welfare and protection of civilian populations.
Q: What policy challenges does IHL present to the range of very diverse humanitarian agencies, all claiming to be acting in pursuit of the humanitarian imperative?
A: First of all, IHL does not directly govern agencies' actions. It does, however, set a framework within which issues of relief access etc. may be decided.
The challenges come more from the ability of agencies to act according to basic principles of humanitarian action. The Geneva Conventions require that an agency offering its services should be "humanitarian and impartial", and it's fair to say that there's often a lack of understanding as to what that entails.
While the principle of humanity is what motivates action, impartiality requires an even-handedness, consistency and objectivity that is hard to maintain. In practice, adherence to the principles of independence and neutrality may the essential prerequisite to being able to provide impartial humanitarian services.
True adherence to a principle of neutrality - including 'neutrality of effect' - requires a set of operational elements that I think a lot of agencies struggle to put in place.
It requires you to be very sure what is happening to any input you are making into a given situation; to minimise the chances of relief aid, for example, being diverted; to be very clear how it is your actions are being perceived, and so on.
In other words, there are all sorts of operational strictures that go with the principle of neutrality that I think many of the non-traditional humanitarian agencies - the new breed, if you like - certainly struggle to adhere to, or may even be unaware of.
Even those that proclaim adherence to a principle of neutrality - and, of course, many don't; many would say 'we're not neutral and we don't claim to be' - find it problematic in some ways.
And there are also agencies that espouse the principle of neutrality when it suits them to do so; it's about maintaining the appearance of non-alignment in a given situation.
I would say, as a general principle, a humanitarian agency has no business taking sides in a given conflict but neutrality requires more than that: it's not just that you don't openly espouse the war aims of one party or another, it's also about the effects of your practice - whether, in practice, what you do helps further the war aims of one party or another, and how that is then perceived.
I think many agencies struggle to work that through in practise.
Q: Is that sort of challenge essentially what ODI and others mean by a principled approach to humanitarian action?
A: To a certain extent, yes. There are various types of principle that we're concerned with. The more fundamental ones are less to do with the ways in which humanitarian agencies conduct themselves and much more to do with how belligerents conduct themselves.
The fundamental principles that underlie the Geneva Conventions - the distinction between combatants and non-combatants; the proportionality principle; the precautionary principle, and so on - primarily concern belligerents' conduct.
But there is an important set of secondary principles, which govern the way in which humanitarian agencies interact with these situations.
And the critical ones, to our mind, are impartiality and the principle of humanity itself: that gives the humanitarian imperative.
But impartiality is the governing principle, I think, as far as humanitarian action is concerned, and is directly analogous to the non-discrimination principle in human rights theory.
Independence is also important, and maintaining the appearance of independence is crucial [for humanitarians]. This is very relevant in Iraq at the moment, given the danger of agencies' being seen as agents of the belligerent international forces.
And neutrality is a related principle that is an essential component to maintaining secure humanitarian access in many situations.
Q: Do you think the move towards more internal or intra-state conflicts substantively alters the policy environment in which humanitarian agencies are working?
A: First of all, I think we shouldn't overstate the predominance of internal conflicts given that a number of the most recent large-scale conflicts have actually had an international dimension or, indeed, been fully-fledged inter-state conflicts - as in Kosovo, Afghanistan and now Iraq.
So it's important not to lose sight of that, or the relevance of the bulk of international humanitarian law that is concerned with international conflict.
But it's certainly true to say that internal conflicts have proliferated since the end of the Cold War. Does that complicate the policy environment? Yes, certainly it does. And, in some ways, it makes distinctions that would otherwise be clear much harder to draw.
There are various aspects to that, I suppose. One is the difficult question as to how you distinguish those situations that are, in effect, ones of internal disturbance, and those where you have a situation recognised as internal armed combat.
Where there is internal disturbance, the sovereign state has not only the right but also the responsibility to restore law and order. And there, you're looking at human rights provisions, safeguards in the state's own constitution or statutes about how the state can and should conduct itself in putting down internal disturbance or insurgency.
Where a conflict exceeds that threshold - a threshold that's set out in [additional] Protocol II of 1977 to the Geneva Conventions - and then there's often a dispute as to whether it does exceed that threshold (Chechnya is an example of this) - you have other sorts of problems.
Where it does exceed the threshold, you've got the problem (even more acute than in an international armed conflict) of recognising who are the combatants.
And that's a problem for humanitarian agencies as well; it's often very difficult to know whom it is you're dealing with, where to point the finger of responsibility, not to become complicit in strategies that are actually abusive of civilian populations.
It's true to say that rebel - as well as government forces - will often deliberately blur that distinction; they will indeed take refuge and hide amongst the civilian population. And that makes it extremely hard for humanitarian agencies to know who to deal with and how to conduct themselves.
And of course that happened in microcosm in some of the refugee camps in many situations: in Goma, West Timor, Pakistan [during the Afghanistan war], and so on.
So these things are, practically, very difficult and it certainly affects the policy environment for humanitarian agencies.
I think, increasingly, humanitarian agencies have become conscious that probably the biggest protection issues are precisely those where a civilian population - and often a refugee population - is, in effect, being held to ransom by its own leadership…
And that the protection action required is demilitarisation of the refugee camp - in West Timor, for example - without which free action, free of fear, on behalf of the civilian population is just impossible.
So there are various ways in which the policy environment is complicated, particularly in internal conflicts.
There are problems, of course, in holding non-state parties to account, and some of those are a matter of legality and status.
But where a conflict exceeds the threshold in relation to IHL, such that it qualifies as an internal armed conflict, the parties will, by definition - even non-state parties - fall under responsible command, and have representative structures. We're very rarely talking about groups that are anarchic.
It's also true to say that groups like this are normally as much concerned about their image, both locally and internationally, as any state party would be … So there are various ways in which a set of protection norms, or the rules of IHL, may have a bearing on non-state parties in ways that are actually quite similar to the way they may inform the behaviour, policies and practices of state parties.
Q: You mention that few armed groups are anarchic but some appear to be motivated more by economic profiteering than political goals. Is there a particular policy challenge in dealing with such elements?
A: Certainly there is. Relief agencies and the assets they bring with them become part of the political economy of war. Agencies have become much more aware of this, but they cannot avoid it - nor should they necessarily be expected to.
The Sphere Charter states the limits of responsibility quite clearly. Agencies have to take all reasonable steps to minimise the potential adverse consequences of their interventions. [see www.sphereproject.org]
Part of that is about identifying the chain of command, knowing who it is you're dealing with, the extent to which, if somebody promises you, they can and will actually deliver - in ways that you're much more likely to be sure of in dealing with a state military force. It's partly, in that sense, knowing who you're dealing with and what their status is.
It's also true that parties like that exist outside any effective political structures or, often, social structures.
Where you're dealing, for example, with a warlord in Afghanistan, and although that creates all sorts of problems for aid agencies, you know by and large what that person's constituency is, you know roughly speaking what the extent of his authority is, so you're rarely dealing with wholly anarchic situations.
But of course that may make it no easier to be able to know how to conduct yourself in situations of that kind. And you are likely to have no recourse to any other point in any political structure through which to raise concerns or make complaints.
There is no accountability with people of this kind [profiteering or anarchic] so, yes, I think it creates fundamental problems.
Q: Speaking of accountability, is this important for humanitarian agencies themselves and is it covered under humanitarian principles, deriving from IHL?
A: I think it's very important. One of the things that the Sphere project [that devised a humanitarian charter and minimum standards for disaster response] tried to do was locate this notion of accountability much more centrally in the humanitarian endeavour.
[see www.sphereproject.org]
You have to ask, of course, accountability to whom and for what? And there are all sorts of questions about the extent to which humanitarian agencies are, or can be, accountable to those they are actually seeking to assist. And there are various initiatives going on to try to explore how that form of accountability might be strengthened.
But there are also other forms of accountability: there's accountability to those who provide the resources for humanitarian action; there's accountability to the community at large for the way in which an aid agency conducts itself.
In that area, how one agency conducts itself is not unrelated to the general environment for other agencies and I think there's something [more to be explored] about accountability within the humanitarian system.
On the question of principles, the Sphere Charter taken together with the Red Cross/NGO code of conduct, I think provides a pretty good statement of the range of relevant, applicable principles.
At the moment, this is a voluntary code and there's a case for saying that we should be moving towards something that looks more like what would exist in any other kind of professional body which is a code which is not only voluntarily adopted but where compliance with that code is monitored, and that there are some sanctions for failing to adhere to it.
I think that will come. I think we're quite a long way from it at the moment and part of the reason for that is because of where these agencies are coming from, the very different nature of their mandates, the enormous range of variables that they will point to in their ability perform and no real barriers to entry.
The only effective barrier, I suppose, is the ability to raise funds and there's an important question as to the extent to which donors consider an agency's ability to demonstrate accountability as a key criterion for funding. It's highly questionable at the moment whether they do.
Of course, accountability for impact is something that everyone is struggling to demonstrate anyway, so what we're talking about is more a matter of accountability for how you conduct yourself, which can be critically important.
I think we're moving along those lines, but we're moving very slowly. I'm not sure we will ever get to a point where you see anything like the kind of fully worked-through professional code that exists in other areas but I think we will - and should, probably - go further down that line than we are at the moment.
Q: Are you concerned that the case for policy coherence in complex emergencies presents a danger to humanitarian agencies' neutrality, impartiality and independence?
A: Yes, I believe it does, at least if interpreted in a certain way.
First of all, let's be clear that I think we would all agree that there's a case for a far greater level of coordination of action within the humanitarian sphere. I don't think that's in dispute.
As far as policy coherence is concerned, it rather depends what policies you're talking about. There's been a tendency to expand the humanitarian agenda - that is to say to, introduce objectives into the humanitarian programme - that don't look like humanitarian objectives per se.
Those might be about conflict prevention, for example. Now while there are obvious links between conflict prevention and humanitarianism, they are quite distinct. In fact, humanitarian action is premised on the idea that violent conflict can and does happen. And the Geneva Conventions have nothing to say about the merits or otherwise of conflict.
There are other policy agendas that are to do with human rights, governance and other matters that may fall within the legitimate interest of the UN, for example, whose relation to humanitarianism is by no means straightforward.
And it's within the UN, I think, that these dilemmas become most noticeably acute. I think if you look at the integrated missions - the Afghan one, for instance - you see some of these dilemmas played out in practice.
We believe that there are essential links between the humanitarian agenda and what falls outside it - most obviously the political. For example, in order to meet humanitarian protection ends, it may be important - critical, indeed - that certain forms of political action are taken. And ultimately that might include armed intervention.
Now humanitarians are divided as to whether or not there is such a thing as 'humanitarian armed intervention'. But there is at least a case to made for saying that, in certain circumstances, in order to achieve the aims that we believe to be necessary, to secure humanitarian principles, you may need to make certain sorts of decisions about armed intervention - as the Responsibility to Protect document stipulates. [document at www.dfait-maeci.gc.ca]
It sets a high threshold and a number of criteria for intervention derived from just war theory. It is restricted to events like genocide, mass killing or ethnic cleansing.
But that's more about recognising, if you like, the limits of the humanitarian project and saying there is a certain point at which what the humanitarian system can deliver stops and where other forms of action are absolutely necessary.
So, we see the need for coherence in the sense that there are certain forms of political action that are absolutely, intrinsically connected to humanitarian outcomes.
What's much more worrying is the attempt to use the humanitarian vehicle in an attempt to achieve outcomes that it was never designed to achieve, probably never could - and, in doing so, threatening basic principles like neutrality.
Conflict prevention is perhaps the most striking example of this. In the current climate, there are concerns that the humanitarian agenda will be co-opted by (and subordinated to) the global security agenda in the 'war against terror', and related geopolitical strategies.
Q: What are the dangers you see in that linkage between the political and the humanitarian spheres?
A: Well, let's take the example of Afghanistan. It was interesting in that case that the US-led attack on Afghanistan, against the Taliban, was justified in the first place under the self-defence provisions of the UN Charter.
But a very clear secondary rationale for it was given as the need to 'protect' ordinary Afghans from this abusive regime. And, indeed, we've begun to hear similar sorts of arguments in relation to Iraq, and it was explicitly the grounds on which the alliance countries went to war on Serbia.
A lot of the difficulty we see with that is by co-opting the humanitarian agenda, you actually make it impossible to maintain the space within which humanitarian activities can be conducted with the perception that those activities are not connected to the broader political agenda.
Without that perception it becomes both difficult and dangerous for humanitarian agencies to do their work.
The most obvious example of that would be in a situation where an intervening force is seeking to work with humanitarian agencies in such a way that it says, in effect: 'We will clear this area and ask you to pick up the pieces'.
By being invited to pick up the pieces, and if agencies accept that role, what they're effectively accepting is a role in a particular form of political strategy.
To do so risks losing, forever, the protection of neutrality, which is ultimately our sole guarantee of access.
Q: Do you think there is any way to leverage a consistent interest in the protection of civilians across all violent conflicts - to establish the "culture of compliance" Kofi Annan speaks of - given a world of fast-changing geo-political priorities?
A: I think there are ways. I think what MSF does in this respect is particularly important - that's to say, témoinage: the active bearing of witness to violations, through the collection of statements from the people directly affected and related advocacy.
There are various levels at which you might want to leverage action. Part of that is with the general public in the north, and I think a consciousness of what actually happens towards these people in violent conflicts is hard to generate unless you're able to tell human stories. I think the collection and effective communication of those stories is an essential part of that.
So, there's a consciousness-raising at the level of the general public, without which it's very hard to generate any political pressure on governments.
Arguably, there's more to be done on consciousness-raising of what's acceptable and what isn't in these context themselves - and I think some of the work that's been done in Angola and Colombia, for example, with the Guiding Principles on Internal Displacement is a good example of that.
As to how you get it high up the political agenda, I think that's very difficult. And I think one of the problems with the Responsibility to Protect document is not the document itself - which, in many ways, is very good - but that, in 99% of cases, international protection is simply not an option: it is not going to happen.
And so what we're concerned about is the factors that actually determine whether somebody living in the Democratic Republic of Congo, for instance, is likely to be able to procure protection.
There are various factors in that. Asylum is critically linked to this and I think that's underestimated at the moment.
I see UNHCR quoting figures of refugees that have come down quite dramatically in recent years, and I see people interpreting that as a sign of success. I actually think it's extremely worrying in many ways because I'm bound to ask, 'Where are those people?' I don't believe the world has suddenly become a safer place.
So the question about what escape routes people have is relevant and I think there's awareness-raising that needs to be done globally about the need for asylum, which has become a rather dirty words in many contexts. So that's one other avenue of approach.
Another is the development of the International Criminal Court, and it will be interesting to see whether in relation to the Iraq conflict the court is able to play an effective role in prosecuting war crimes.
One thing I want to say - and I think this is sometimes misrepresented in the international humanitarian system - is that, short of armed intervention by a third party, there is no system of protection, legal or otherwise, that can actually protect people if the warring parties are not motivated to do so themselves.
I think it would be quite wrong to think that, if only the humanitarian system could be made to work better, people would be protected. The world doesn't work like that.
The humanitarian system may be able to influence what happens, or it may not - and frequently it cannot. Again, this is about recognising the limits of the system, but not to underestimate the importance of the work humanitarians may do to try to influence behaviours, directly or indirectly, through advocacy or otherwise.
But I think it would be a dangerous fallacy to think there is a system out there that can protect people in any real sense, and that if only we could "get it right" - and get the right strategies - then people would be safe.
It's a terrible distortion to think that, and we need to guard against it, while pursuing the kind of approaches that are set out in initiatives like The Sheltering Tree, which is about the way that humanitarian actors can, indeed, reduce the levels of risk for people in various ways.
[ENDS]
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