Protecting civilians caught up in armed conflict

International humanitarian law demands of belligerents in situations of armed conflict that they respect the distinction between combatants and non-combatants and attack only military targets. It also requires that they use only the degree of violence proportionate to their military requirements, all the while taking due care to protect civilians and civilian infrastructure. While the primary responsibility for the protection of civilians rests with state and non-state parties to conflict, there is also a web of partnerships for protection comprising states, UN agencies, regional organisations, international and national NGOs, and other actors. Humanitarian agencies need to make sure that protection does not fall through the cracks – at the field level and in operational planning, according to Elissa Golberg, Deputy Director of the Human Rights, Humanitarian Affairs and International Women’s Equality Division with the Canadian Department of Foreign Affairs and International Trade. "Sometimes this demands a more holistic approach," she said. "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." The matter of civilian protection is not only difficult in practice, it is also poorly understood by some humanitarian actors who do not understand their roles and responsibilities – or the limits of these – under international humanitarian law, according to some observers. Unless we are far clearer about what the standards are, we can't hold people accountable, according to Mark Bowden, head of policy at the UN Office for the Coordination of Humanitarian Affairs (OCHA). So, we need to try to maintain some standards of conflict - at least by outlining what they are, he told IRIN. “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 of Medecins Sans Frontieres (MSF) told IRIN. "This idea of physical protection amounts to security. It can only be guaranteed through public order mechanisms. 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." Humanitarian law has no power to stop war or to find peaceful settlement, or to give military protection to civilians, according to Bouchet-Saulnier, but it has the power to limit the level of violence on civilians to an acceptable level – meaning that they can survive the war. "If this threshold is crossed, humanitarian actors have to trigger other mechanisms involving states' responsibility to respect and make IHL respected," she added. "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, said James Darcy, a research fellow at the UK-based Overseas Development Institute (ODI). "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," Darcy told IRIN, warning of the dangers of humanitarian assistance being used to substitute for international political engagement. "The humanitarian system may be able to influence what happens, or it may not – and frequently it cannot," he said. "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 humanitarians could 'get it right' – and get the right strategies – then people would be safe." Darcy said there was also much to be achieved in the area of "bearing witness to violations" and related advocacy to achieve a consciousness-raising not only within the humanitarian sector but also among the general public, "without which it’s very hard to generate any political pressure on governments". Humanitarian agencies in conflict situations engage in negotiating access with armed combatants on the ground, an area where they have to be careful not to be misled, exploited or depart from humanitarian principles, according to observers. "The whole philosophy of IHL is to link power with responsibility," said Bouchet-Saulnier. "It’s very important that relief organisations engage in negotiations with belligerents in order to set up what kind of responsibilities these belligerents accept and endorse towards the populations they control and towards relief organisations." This "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," according to Darcy. "This is an important process," she added, but it has to have limits, because negotiation means that you will not give up everything for the sake of access. IHL gives key references about what is acceptable and what is not." [for the full text of these interviews go to: www.irinnews.org/webspecials/civilprotect] Improving implementation Much work had been done to strengthen the international policy agenda on the protection of civilians in armed conflict, UN Secretary-General Kofi Annan reported to the Security Council in November. A series of UN Security Council resolutions on civilian protection, women, peace and security, and children and armed conflict have recently improved and established clearer standards and norms, often drawing together international humanitarian law and human rights law. The protection of civilians is more than international humanitarian law as defined by the Geneva Conventions, Mark Bowden of UNOCHA told IRIN. The protection of civilians relates to the body of international humanitarian law, refugee law and human rights law that provides the protective framework. The important part was always “unpacking” this and “making it relevant, not just for the political context of [UN headquarters in] New York but also for the field," Golberg told IRIN. "Certainly, I think the [Security Council’s] aide memoire [on civilian protection] is one important way of doing that." The hope is that the Security Council’s aide memoire on civilian protection adopted in March 2002 will be a useful instrument to ensure that the issues of protection of civilians are systematically taken into consideration – both within the UN system and by humanitarian agencies more broadly. The document lists a number of objectives, such as obtaining access to vulnerable populations, separating civilians from armed elements, justice and reconciliation, the specific needs of women and children, addressing ‘hate media’, and considering the humanitarian impacts of sanctions. The aide memoire has come to represent "the 10 Commandments" of protection and a backbone of humanitarian training on the issue, according to the UN. [www.reliefweb.int/library/documents/2002/Advocacy/SPRST20026%20aide%20memoire.htm] At the political level, the aide memoire would serve as useful institutional memory for incoming Security Council members and guide the UN in the daily work of assuring the protection of civilians, according to Kenzo Oshima, UN Under-Secretary-General for Humanitarian Affairs. Experts have also pointed to the significant use and development of field guides and manuals, such as: The Sheltering Tree and the Good Practices Manual for the Guiding Principles on Internal Displacement; codes of conduct and checklists for both humanitarian workers and belligerents; or principled frameworks for assistance and action, like Memorandums of Understanding and basic ground rules. The challenge for humanitarian agencies is not just to have a protection lens in their operations but also to look at the tools available, such as the aide memoire, and see how they can help them improve policies and practices for protecting civilians. The importance of advocacy and dissemination, particularly prior to conflict, was emphasised by the ICRC’s Francois Bugnion, who argued that "if soldiers, combatants, the civilian population understand at least the basic principles of humanitarian law, this already reduces the risk of violations". Securing safe and unimpeded access Under the Geneva Conventions and additional protocols, impartial and humanitarian relief services must be allowed access to vulnerable populations (subject to the consent of the belligerents), and there is special protection laid down for particular vulnerable parties (including the sick and wounded, and children). Provisions of international human rights law further strengthen the position, offering protection of the freedom of movement of all, including aid workers, and the right to survival and development – including medical treatment, food and shelter. But there are some very fundamental gaps in the system of protection for civilians, according to Mark Bowden, head of policy at OCHA. One of these, he said, was over the area of property rights and restitution. “The ability of displaced people or refugees to regain their property is one of the key areas of protection that helps the resolution of conflict.” Protection of civilians from terrorism and the consequences of dealing with terrorism were also areas that were inadequately covered, he added. But even in so far as civilian protection is covered under IHL, aid workers continue to witness the denial of safe and unimpeded humanitarian access – with material assistance blocked or diverted, humanitarian personnel denied access, allowed only restricted access or denied the safety to fulfil their mandate. In this situation, the British-based ODI says, the very notions of neutral, independent and impartial humanitarian action are being challenged as agencies attempt to work out, and rework, as situations evolve, "a practical ethical framework for humanitarian action suitable for the current political context". The Humanitarian Policy Group of the ODI has also highlighted the difference between agency access in a conflict situation and broader humanitarian access, arguing that agencies are often too ready to sacrifice rights and protection issues – for instance, the moral imperative to speak out about abuses – to the god of access. It is a considerable policy challenge for humanitarian agencies, then, to maximise the assistance and protection provided in keeping with their humanitarian imperative, while minimising the diversion of assistance or manipulation of their efforts by belligerents. "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," according to Darcy. Safety and security of humanitarian workers Within the broader issue of access, the safety and security of humanitarian workers assisting populations is an important issue. Under IHL, belligerents must provide safe and secure access to independent and impartial humanitarian actors (which highlights the importance for humanitarians of the concepts of neutrality, independence and impartiality). "We also have to make clear that access is not an end in itself. Giving security to humanitarian organisations is not enough, because humanitarian activity is supposed to give security to civilians," said Bouchet-Saulnier. "In negotiating access, it’s very important to make clear that humanitarian action is not under military control – but under military responsibility not to target us and not to target the civilians." It is important to make the distinction between what is civilian and what is military and this is one of the key elements to physical protection, according to Bowden. “This allows for the separation of the military from civilians.” One of the key ways in which humanitarians could provide access to those most in need was by developing a stronger understanding of the need to maintain a distinction between military and civilian, he added. At all times, in considering civilian protection, one also has to bear in mind the safety of humanitarian staff, according to Golberg. "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," she told IRIN. The International Criminal Court had given a potent new weapon for the protection of humanitarian workers, according to Mark Bowden of OCHA. “In cases where humanitarian aid workers are deliberately targeted and killed as a means of stopping humanitarian assistance, this would lead almost automatically to there being a liability at the ICC.” The targeting of aid workers alongside civilians in times of conflict is an attack on the role of humanitarian organisations, and "an attempt to drive them out and deny their role as protectors of civilians in conflict", according to Kofi Annan. "Such acts," he told the Security Council, "should be recognised as war crimes and dealt with accordingly by the relevant national authorities or the ICC." Humanitarian accountability The need for greater accountability among humanitarian agencies, in terms of their operations and conduct, was an area that needed to be addressed, according to the ODI’s James Darcy. At one level, this involved the agencies’ need to be more accountable to beneficiaries – those on whose behalf they are purporting to act – and, on another, the need to be accountable to the broader humanitarian community and to those who provide the resources for humanitarian action. It was for these reasons that the Sphere project [that devised a humanitarian charter and minimum standards for disaster response] tried to locate this notion of accountability much more centrally in the humanitarian endeavour, he added. [see www.sphereproject.org] In that light, humanitarian agencies need to make their own evaluations, to be on the ground, to be present with and for people in a situation of armed conflict, according to Francois Bugnion of the ICRC. It was important that agencies "react to needs that they have determined by themselves, react to their own evaluations of the needs of the victims, are personally present whenever distributions take place, and are transparent about the use they are making of goods and funds put at their disposal," he added. The dangers of politicisation There has been a trend to put the international political and military management of crises under the flag of "humanitarian action", but humanitarianism should remain separate, know the scope and limits of its mandate, and not allow itself to become scapegoat for political inaction, said Bouchet-Saulnier. "Humanitarian, political and military are three very different areas that should remain clearly separate in order to remain efficient" in their different realms, she said. Humanitarians have often been very good at taking on themselves responsibility for things that actually are not their responsibility, according to Darcy. "Often they do not have the means to fulfil their stated objectives, and in attempting to do so, they blur the lines of responsibility," he said. "I believe that we need to define those responsibilities [humanitarian, political and military] very clearly." The ODI has warned of dangers in the blurring between overtly humanitarian and more political intervention - together with the "retreat" of donors from many parts of the world, meaning that humanitarian agencies are being sucked into taking more political space – not least to the very notion of humanitarianism. "Without a way of distinguishing between political and humanitarian intervention, both conceptually and organisationally, humanitarian aid may well become more politicised and thus struggle with acceptance and safety, not to mind legitimacy," according to the ODI. "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," said the ODI’s James Darcy. "What’s much more worrying," he added, "is the attempt to use the humanitarian vehicle in an attempt to achieve outcomes that it was never designed to achieve [like conflict prevention], probably never could and, in doing so, threatening basic principles like neutrality." Observers note that humanitarian agencies should be taking steps to ensure that, through their own programming, they are providing assistance in ways that mitigate, rather than exacerbate, the suffering of civilians. What comes across clearly is the need for humanitarian agencies to think beyond programming practicalities to the political economy of conflict situations, as well as the need to analyse where and how their activities fit into this, and whether they provide protection for civilians or, in fact, worsen conflict situations.