Interview with Elissa Golberg,Deputy Director, Human Rights, Humanitarian Affairs and International Women’s Equality Division, Department of Foreign Affairs and International Trade, Canada
QUESTION: Much has been made of the alleged inadequacy of IHL to protect civilians, especially in relation to modern warfare and armed non-state actors. What do you make of the strengths and weaknesses of IHL?
ANSWER: The Canadian take has always been that existing IHL remains extremely relevant. The strengths and weaknesses, in our view, lie more in the respect for it – in its application and implementation. Certainly there are a number of challenges, but we think they relate more to interpretation and application.
Among the main challenges we see would certainly be the nature of current armed conflict. There is a problem with violations [of IHL] targeted specifically against civilians, for example. Some of this is not new, but I think the scope of it is, perhaps, different than when people were originally conceiving of the Geneva Conventions.
That being said, common Article 3 of the Geneva Conventions and Additional Protocol II apply with equal force to all parties to an armed conflict, whether it is a government or rebel, non-state actor.
In that respect, we actually look at the drafters as having been quite prescient – because IHL really does capture the immensity of the things we’re dealing with, though sometimes the specifics need to be worked out in the field.
Q: And what about the war on terrorism, and types of transnational armed conflict? Would you see weaknesses there in terms of IHL?
A: No, we believe that IHL remains extremely relevant and that we can draw inspiration from it. The basic elements that cover these circumstances are there. Even if it’s not in international humanitarian law, there are other instruments that can apply, including human rights law.
Q: At the field level in an armed conflict, what are the main issues that arise in trying to provide for the physical protection of civilians?
A: I think access and security are clearly the two principal challenges we consistently run up against, whether it’s the aid agencies themselves or donors trying to support them. That’s access to the actual affected, civilian population, and physical security of civilians, as well as humanitarian workers.
It’s not a fundamental challenge to IHL as such, in so far as these things are covered within it: provisions for full and unhindered access for neutral and impartial organisations is addressed for example. It’s more of a practical challenge in order to protect civilians. 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 recognise the need to ensure the safety and security of aid workers.
Q: How would you explain the gap between the provision for these under IHL and the fact that you constantly have to call for and draw attention to these areas?
A: It’s not that there’s any gap in the law. IHL lays down the minimum protection and standards applicable where people are most vulnerable in armed conflict. IHL also aims to prevent situations that might exacerbate vulnerabilities, such as displacement and destruction of civilian property.
I think, frankly, that demonstrates its relevance - the fact that we can draw upon it for the current environment and be able to point to them and say: ‘There are certain rules and regulations that parties to conflict are supposed to follow. These are them, and how might we go about ensuring that you adhere to them properly?’
Q: Could it not be said IHL is more about prosecuting those who commit war crimes than trying to prevent these crimes being committed?
A: No. No, as I said: IHL is aimed at trying to prevent situations where civilians would be harmed. It’s got very clear provisions for it. It talks about proportionality. It talks about the things armed actors are expected to do – and not to do. At the same time, when those violations occur, it also addresses the needs with respect to remedial measures, for instance: the International Fact Finding Commission and the Statute of the International Criminal Court. We would see these as being two sides of the same coin.
Q: What additional tools or implementation procedures would Canada like to see in place to improve civilian protection?
A: Obviously, we think the aide memoire on civilian protection adopted by the UN Security Council is pretty useful. When we were on the Security Council, we made the protection of civilians a priority and, following from that, were able to negotiate with other members Resolutions 1296 and 1265.[see: www.un.org]
There are other complementary resolutions: those on Children and Armed Conflict, Resolutions on Women, Peace and Security, and those on conflict prevention. Taken together, these resolutions provide a very important set of standards, things the Council has committed itself to doing.
The important part there is always ‘unpacking it’ and making it relevant, not just for the political context of [UN headquarters in] New York but also for the field. Certainly, I think the aide memoire is one important way of doing that.
I think some of the other practical things that can be done include, for instance, the use and development of field guides, and manuals. I think there we’ve got things like The Sheltering Tree – that’s an inter-agency field manual developed by UNICEF and OCHA and the other members of the Inter-Agency Standing Committee.[see: www.unicef.org]
Canada funded part of it and it’s an amazing tool. It’s meant to be a living document, and provides practices gathered from the field on how individual agencies have tried to do protection.
There’s also the Good Practices Manual devised by the UN Inter-Agency Standing Committee [IASC] for the Guiding Principles on Internal Displacement, and I think those kinds of things are extremely valuable – because it’s not theoretical. It’s trying to take the law or policies and demonstrate how you can actually do protection in a very specific way, as part of your activities and programmes.
So it would be a matter of disseminating [such policies or other materials] in the field and generating further best/good practices by them. You can also use things like check lists at the field level: 'friendly reminders' for staff.
This relates to a bigger issue that we have been trying to promote with humanitarian agencies: that it’s really important that various agencies recognise that they all can have a role to play in protection, and they need to look at how their organisations can better account for this.
Sometimes people say: ‘Well, protection, that’s just UNHCR, ICRC or UNICEF.' But in fact it’s not; it depends on how you interpret protection. People sometimes believe protection is limited to legal efforts when, in fact, it also relates to physical security and material wellbeing. And that can be as important to a civilian as having someone promote the law.
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. But that’s OK, that’s just one kind of protection. Humanitarian agencies can do other things to enhance the safety of their beneficiaries.
I think that the work that OCHA and other agencies have been doing in negotiating principled frameworks for assistance and action [like Memorandums of Understanding and basic ground rules] are important, in part because it provides for a level playing field in terms of what the expectations are.
Q: What are the responsibilities of diverse humanitarian agencies, all demanding unlimited access and quoting the humanitarian imperative under IHL, and to whom are they accountable?
A: Accountability is obviously a very challenging question within the humanitarian community right now. Certainly, we would expect agencies to be accountable to their beneficiaries, as well as to donors who are providing resources, as well as to their staff. There are degrees and ranges of accountability.
I think regardless of how diverse the agencies are, they can and do have a role to play in protection. It’s just a question of each agency trying to understand what’s its value-added is in a given context.
Agencies need to make sure protection does not fall through the cracks – at the field level and in operational planning. Sometimes, this demands a more holistic approach. There are times when it’s great if beneficiaries get material assistance, but if they don’t feel physically safe, then obviously that’s problematic.
We’ve also been doing a lot of work, for example on specific issues such as refugee camp security – trying to get governments and implementing partners to deal with insecurity from the outset of an operation, for instance how camps are laid out and designed, where they’re located.
But we’re also trying to look at other issues: making sure that appropriate measures and matrices are in place to check what kinds of violence are happening, what kind of security incidents there are, how do you work with local communities to make sure there are not tensions with displaced populations?
But always, behind this, we have to bear in mind the safety of humanitarian staff. Absolutely, they have to promote the protection of civilians, but if they themselves are insecure it makes it very difficult for them to do that.
Q: Is there a serious tension between negotiating access with combatants in the field and the principle of unhindered humanitarian access?
A: People in the humanitarian community are a very practical bunch, and the reality is that both are essential. Agencies have to insist on the general principle of full and unhindered access, but, at the same time – given the people they sometimes have to negotiate with – at times they have to make specific arrangements, like Days of Tranquillity for immunisation or the kind of Memorandum of Understanding [MOU] we spoke about.
I think it’s just the reality that sometimes, for them to operate, they have to reach specific agreements. But it doesn’t mean that they should not be vocally and insistently advocating for the principle of full and unhindered access.
Q: In what ways can belligerents be held to account for their responsibility to protect civilians?
A: A good question. I think you’d probably break it down along the lines of legal, political, economic. There are different ways in each of these areas you can hold people accountable.
Certainly, common Article III of the Geneva Conventions and Additional Protocol II applies – with equal force – to all parties, governments and non-state [actors] alike. States have obligations to punish violations of IHL treaties. States that commit grave breaches of IHL might be subject to sanctions by the Security Council.
There are other tools at the disposal of the international community and I think sanctions are an interesting one. We have seen, especially recently, how targeted sanctions can have an impact on both state and non-state actors.
Angola is interesting in that respect. The whole economic agenda in civil wars has been much more carefully looked at of late. We had the DRC panel, for instance, which tried to identify the ways in which natural resource extraction was impacting on the conflict, and how that could be addressed by the international community.
Q: Is there a case to be made for a threshold of grave breaches at which certain specified sanctions should automatically be called into play?
A: Well, to an extent, that already exists within the law, although I think we would certainly agree that states must be much more diligent in apprehending and prosecuting those that commit the most serious international crimes. The only way to really effect deterrence is to pursue and to prosecute. And prosecution can be done by any state. Or if states are unwilling or unable to prosecute serious criminals, you have now got the International Criminal Court [ICC].
Q: Is the ICC, with the judges recently sworn in, an important new tool for IHL, or does the refusal to cooperate of some major powers, including Security Council members like the US, make it inherently flawed?
A: Canada has, from the very outset, been an extremely strong supporter of, and advocate for, the Court. The ICC has the support it needs to function effectively, with or without the US – and obviously we would like the US to support it.
We have got 89 states that have already ratified the statute [establishing the ICC], bringing it into force much sooner than we ever expected. The parties that are involved include some fairly significant states: the UK, France, Germany, pretty much all the European Union and many countries in Latin America and Asia. And the ratifications are coming forward at a pretty impressive rate.
And frankly, with respect to the suggestion that there might be a fatal flaw, the lack of US support does not flow from any flaw in the Court itself. The statute contains extensive checks and balances, and limitations of powers, to prevent frivolous prosecutions. Its jurisdiction is based on long-established principles, including those the US helped to affirm at Nuremberg [with the trial of Nazi war criminals after World War II]. The crimes are the ones that are universally recognised, and the procedures comply with all international human rights laws.
So, no, we don’t think there’s a fatal flaw. Canada firmly believes that the Court was built on an extremely strong footing, that it has a wide range of support from a variety of geographic regions, including especially strong states, and we hope, over time, that those who have not ratified yet, will.
Q: Do you think there’s any way to find a consistent approach to civilian protection across all armed conflicts, when geopolitical priorities are constantly shifting?
A: I think this is always a challenge. With Canada having galvanised attention to the protection of civilians around the Security Council, we learned very quickly that the key is, really, to retain the momentum.
Promoting the Secretary-General’s 'culture of compliance' requires a range of measures that can be consistently undertaken at the field level or at the political (multilateral or bilateral) levels. Things like awareness raising, education, training, consistent advocacy against violations – and advocacy, especially from civil society – will all help.
It’s clear that states get distracted based on what’s happening in the world, which means that those on the ground then have an even more important role to play, in making sure these don’t fall off the radar. And it doesn’t necessarily have to be through media attention. Issues can be brought to individual states' attention, and situated on the agenda of the Security Council and of the rest of the General Assembly.
And then there are other things - like fact-finding missions, exposure of violations, prosecution of grave breaches and serious violations.
We have a whole set of tools at our disposal. It’s just a question of making sure that we have a community of states and individuals that can consistently make sure these issues receive and sustain the kind of attention they demand and require.
Q: In terms of civilian protection, what achievements have been made in recent years and what are the main challenges as we go forward?
A: In the last couple of years, we have really made remarkable progress in raising awareness of the safety of individuals and the importance of protecting civilians.
I think we had a critical moment in time where we were really able to put that issue at the centre of international action. The fact that the Security Council passed resolutions explicitly saying that it would take action where civilians were deliberately under threat, or assistance to them was obstructed (which operative paragraph 10 of Resolution 1265 says), that’s remarkable.
That’s a huge shift, because, before then, we really used to just focus on protecting humanitarian assistance: we did not focus on protecting people as such. So I think that’s a remarkable achievement.
The landmines initiative, the International Criminal Court, the operative paragraph to the children in armed conflict – those are also incredibly important accomplishments. Specific instances, too, where we have seen action on the ground in support of civilians are also important – like East Timor, and even Kosovo.
It’s amazing, also, to look at specific Council resolutions that, for the first time, take into account civilian protection as part of UN peacekeepers’ mandate. In the DRC [first mandate] and Sierra Leone, they actually called on peacekeeping troops to, within their area of deployment, take armed action to protect civilians under threat. Again, that language has recently been included in the Security Council resolution on Cote d’Ivoire. That’s amazing.
The key challenge will be implementation, and maybe that goes on the other side of your balance sheet. That is to say, our rhetoric has gone very high; we have managed to achieve a great deal in terms of norms and standards, and advocacy. The challenge is always in making sure we’re able to, effectively, make that shift on the ground.
Looking at some of the other challenges, I think the proliferation of small arms and light weapons is a serious challenge. It’s one we’re all still trying to get our heads around. Certainly, the UN Conference on Small Arms and Light Weapons in all its aspects which took place in New York July 2001 was a step ahead, and some of the work the Centre for Humanitarian Dialogue and the Small Arms Survey have been doing is really important.
That’s a serious challenge – and it’s a challenge that governments recognise. The Mali Moratorium, for example, was important - especially [in] that it was an African country that pushed ahead on it.
The way that war is waged obviously remains a significant challenge. The fact that, in a lot of circumstances, we’re seeing armed groups that don’t have standard ‘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.
They may be just unfamiliar with – or not care about – the proper rules of engagement. For them, attacking civilians is a deliberate war aim. And how we try to grapple with that is really the question.
Q: Is the international community coming to civilian protection a little late in the day?
A: We have to be clear that agencies have been doing this kind of work for a long time. Certainly, the ICRC would probably take offence at any suggestion that we’re only getting into protecting civilians now.
We have lessons going back decades – although in terms of broad international awareness, that has perhaps come much more recently. And I think it’s because we had a particular window where we were able to really put this on the agenda.
I think the human security agenda really was able to galvanise that attention and bring these issues together in a package that people could understand. Often, we were dealing with these things one-on-one, and the human security agenda really helped to bring them together under an umbrella.
It helped make clear the range of issues that we’re trying to grapple with, and the range of threats. From that perspective, it’s a really powerful advocacy tool.
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