New Challenges For Humanitarian Protection
New Challenges For Humanitarian Protection
New Challenges For Humanitarian Protection
Harvard Center for The fourth Geneva Convention, adopted 50 years ago,
Population and
Development
on 12 August 1949, describes the actions that warring Summary points
Studies, Cambridge, parties must take to protect civilian populations from
MA 02138, USA the worst excesses of war. Building on the concept
Claude Bruderlein Under the fourth Geneva Convention of 1949
developed in the previous three conventions—that cer-
research fellow and protection of civilians in war is accomplished by
special adviser to UN tain activities and people, especially civilians, can be
distinguishing civilian from military targets, on
Office for the seen as hors de combat—the fourth Geneva Conven-
Coordination of the assumption that the military interest is best
Humanitarian Affairs
tion defines in detail the many ways in which civilians
served by attacking only military opponents
Jennifer Leaning must be dealt with to shield them from the direct and
senior research fellow indirect effects of conflict between combatant forces. This assumption breaks down in today’s wars,
Correspondence to: Among the responsibilities that this convention sets for where irregular armies deliberately target civilians
C Bruderlein the warring parties are explicit actions that would
cbruderl@hsph.
harvard.edu
grant medical personnel, and all aspects of the medical Various strategies are being pursued to
enterprise, complete protection from interference or re-establish civilian protection and provide
BMJ 1999;319:430–5 harm. This neutral status for medical relief (and, by neutral space where medical and aid workers can
extension, all humanitarian aid) rests on the reciprocal deliver relief
assumption that those who deliver this relief are prac-
tising in accord with their professional ethics and will Physicians should participate with potential
take specified steps to maintain their neutral posture actors in developing and implementing these
vis à vis the warring parties. strategies
The moral impetus for this addition to the Geneva
Conventions derived from international reaction to the
great civilian death toll of the second world war. In vir-
tually all wars of the subsequent 50 years the fourth ian targets would provide little military advantage; and
Geneva Convention has been variously observed and that, quite apart from their legal or moral obligations,
routinely violated—and there has been no calling to parties to a conflict would thus seek to optimise their
account. Moreover, and this is what prompts new resources by targeting military assets. Therefore the
attention to the issue of humanitarian protection in most effective approach to protect civilians in
war, in recent wars the warring parties have shown an international legal treaties on the conduct of war would
increasing tendency to flout the fourth convention be to build on this assumed basic military preference
entirely. The problem is no longer a failure to abide by and promote the concept of civilian distinctiveness.
the rules but a failure to acknowledge that the rules This approach has inspired the development of
even exist.1 international humanitarian law since its inception.
This failure is particularly relevant for the medical A corollary of this approach is to designate the
community. Without the guarantees of protection armed forces of the warring parties as the principal
defined in the fourth convention, civilians can be implementing agents of the protection. International
slaughtered with impunity and physicians and other humanitarian law states that those who seek to be pro-
relief workers swept up in the ensuing carnage. Once tected cannot engage in any hostile activities without
the notion of civilian protection is abandoned, the ter- losing their protected status. If the armies confirm that
rain of war is changed utterly. At the very moment we the civilians are abiding by these constraints then the
celebrate the 50th anniversary of the Geneva Conven- armies are obliged to ensure that the civilians are
tions, we find that effective respect for humanitarian indeed protected. An essential element of this legal
protection has reached its nadir. regime therefore is the commitment of the parties to
the conflict to abide by the rules.
Traditional approach to humanitarian
protection Intensified threats to protection of
The traditional legal effort to protect civilians in war
civilians
has long centred on distinguishing between civilian The traditional approach taken by international
persons or objects and military targets. This approach humanitarian law thus rests on a particular and
was based on two key assumptions: that attacking civil- rational view of military interests and behaviour.
The key focus of these efforts has been to effort is now underway among several such organisa-
strengthen international judicial institutions. The tions to provide documentary and forensic evidence to
culture of impunity that shelters individuals responsible the international criminal tribunals of Yugoslavia and
for violent assaults against civilians is one of the biggest Rwanda.
obstacles to protecting civilians in most conflicts. The Relief organisations, under increasing public
unwillingness or inability of states to bring these people scrutiny and subject to ever more frequent danger in
to justice undermines the effectiveness of the entire the field, have also realised that they must educate their
legal framework. An international remedy for such situ- staff in the principles of human rights and inter-
ations has been identified in the establishment of an national humanitarian law.16 Their staff will thus oper-
International Criminal Court and the creation of the ate within internationally respected norms and know
two ad hoc tribunals for the former Yugoslavia and for what should be expected from warring parties and the
Rwanda by the UN Security Council. international community in terms of humanitarian
protection.
Action from professional groups
Professional groups, including lawyers, doctors, and Expanding the scope of humanitarian protection
journalists, have also played a part in reinforcing The need to expand the scope of humanitarian
traditional mechanisms of protection by recalling the protection arises directly from the changing nature of
legal obligations of parties to armed conflicts under war. Were civilians not terrorised into fleeing from
humanitarian law. The successes of “sans-frontières” their homes, issues relating to internally displaced
non-governmental organisations, such as Medecins people would be less acute. Were regular forces fight-
Sans Frontières, International Commission of Jurists, ing according to standard rules of weaponry, the pro-
or Reporter Sans Frontières, is a demonstration of this liferation of unmarked antipersonnel landmines
mobilisation of professionals. The medical and public would be less of a problem. Were children not being
health communities, through international societies, forcibly inducted into irregular armies and then
human rights groups, or relief agencies, played a forced to commit unspeakably brutal acts, the
pioneering role here, taking a strong interest in minimum age and its enforcement would not attract
upholding established international principles of such attention.
human rights in relation to medical ethics and The increasing involvement, over the past decades,
international humanitarian law and in documenting of UN agencies and non-governmental organisations
violations. Beginning with the founding of the World in humanitarian operations has increased the number
Medical Association in 1947, the world’s national of humanitarian actors in conflict situations.17 This in
medical societies have tried to uphold professional turn has affected the perceived scope of humanitarian
norms in the face of potential or actual confrontation protection from one that is basically driven by
with developments in peace and war. An early leader international humanitarian law to one that is driven by
was the British Medical Association, which in the 1980s the many needs of specific groups of victims in specific
spurred organised medicine to combat the participa- circumstances. Children need caring adults; terrified
tion of physicians in torture.9 10 refugees need to be able to feel safe; people from
Physician based human rights organisations have diverse cultures seek respectful space for religious
sought to provide governments and judicial bodies practice; women in camps should not be forced into
with evidence of major violations of the Geneva prostitution.
Conventions during conflict or civil war in the West The humanitarian community has sought legal
Bank and Gaza in 1988-90,11 Somalia in 1992,12 confirmation of this needs based expansion by
Bosnia-Herzegovinia in 1992-5,13 Rwanda-Eastern referring to several key human rights documents that
Congo in 1994-7,14 and Kosovo in 1998-9.15 A major it regards as relevant in conflict settings. These include
the 1951 Convention Relating to the Status of
Refugees, the 1979 Convention on the Elimination of
all Forms of Discrimination against Women, the 1984
Convention against Torture, and the 1989 Convention
on the Rights of the Child. The insistence that key
provisions of these documents do, indeed, apply in a
state of conflict18 has produced a growing recognition
that just because people are trapped in war, they do
not in any moral sense, and thus should not legally,
lose the protection that they could claim if they were
living in a country at peace. International humanitar-
ian law remains the primary legal reference in
conflicts. Nevertheless, these developments in
humanitarian practice and policy, and the new guide-
MARTIN ADLER/PANOS PICTURES
UNITED NATIONS
field hospitals overwhelmed by landmine injuries, or as
the only source of help in a region suddenly flooded by
internally displaced people, medical relief workers had
Candles and wreaths mark the site in Ovcara, Croatia, to honour the 200 civilians who were
first to act without the benefit of guidelines and were massacred in 1994
then compelled to become more systematic. Internal
critiques and published reviews of this experience21
have accelerated our understanding of the complexity and protection during displacement, and the right to a
of the issues facing those who try to provide relief secure return and reintegration.
when established norms of protection are violated and Finally, the use of children in armed conflicts has
when new forms of attacks on civilians take place in the been another dramatic feature of post cold war hostil-
absence of consensus on what the international ities. An estimated 300 000 child soldiers are actively
community should do next. involved in armed conflicts around the world.24
According to both international human rights and
International initiatives humanitarian law, the current minimum age for
To establish this expanded scope of humanitarian pro- participation in armed conflict is 15 years. Although
tection in the legal and operational sphere is a the recruitment of children as young as 7 already falls
complex challenge. Three recent initiatives, under- far below this international standard, Unicef and other
taken at international legal levels and pursued by many humanitarian organisations have tried to raise
humanitarian and human rights organisations, have awareness and affect realities on the ground by crafting
focused on protecting civilians against the use of anti- the Optional Protocol to the Convention of the Rights
personnel landmines, protecting internally displaced of the Child. This sets a minimum age of 18 years. This
persons, and prohibiting the military recruitment of campaign has also highlighted the many difficulties
children. presented by child soldiers: demobilisation, re-entry
The 1997 Ottawa Landmines Treaty (entered in into society, and education.
force in March 1999) bans the use, production,
stockpiling, and transfer of antipersonnel landmines. Diversifying implementation strategies of
Groups such as the International Campaign to Ban humanitarian protection
Landmines (comprising many humanitarian and The expansion of the concept of humanitarian protec-
human rights groups) were critical in mobilising states. tion has resulted in a more sophisticated understand-
This grass roots coalition, and others associated with it, ing of the rights of civilians in times of war. Such
has now embarked on monitoring compliance with the protection still relies primarily, however, on the ability
treaty and running local landmine awareness cam- and willingness of implementing agents (states, the UN
paigns throughout the world. Security Council, and regional organisations such as
The forced displacement of people within the bor- NATO) to enforce this protection. When warring
ders of their own countries by armed conflicts has parties fail to abide by the rules of international
become a central feature of the post cold war era. In its humanitarian law, it falls to the international
classic form international humanitarian law does not community to enforce them.
protect internally displaced people since they remain The practical importance of this responsibility
primarily under the protection of their own state. Yet remains unclear. Proponents of more assertive
some of the worst assaults on civilians in war have regimes of civilian protection believe that new political
taken place against internally displaced people and security strategies are required, to provide more
(Srebrenica),22 and some of the more intractable tactical options along a continuum within the current
humanitarian dilemmas relate to supporting those legal framework of the UN Charter’s chapter VI (entry
forced to survive away from home but within the bor- with the permission of the sovereign state) and chap-
ders of their state (Sudan).23 As a result the United ter VII (“non-permissive” entry). Such protection
Nations presented “Guiding Principles for the Protec- strategies need to involve political and military actors,
tion of Internally Displaced Persons” to the Commis- such as the UN Security Council, regional organisa-
sion on Human Rights in 1998. These combine tions, and specialised agencies (such as the UN
elements of humanitarian law and human rights law, Department of Peacekeeping Operations) and would
which recognise, among other rights, a right not to be constitute the next generation of international
unlawfully displaced, the right of access to assistance security response to humanitarian crises. The current
rationale for international political and military inter- to which regional organisation, when, and on what
vention is based on threats to international peace and grounds, can be permitted to intervene?
security; in the next generation this would also include
threats to civilian protection.
A role for the humanitarian community
Throughout this decade we have been in the midst
Yet many humanitarian organisations, including many
of that transition. In the former Yugoslavia and
engaged in medical relief, have already begun to accu-
Rwanda, the international security regime failed to act
mulate experience in humanitarian interventions that
decisively to end wars that caused great civilian suffer-
involve a mixture of players—civilian, security, and mili-
ing. Humanitarian and human rights organisations
tary.29 The future success of these strategies of humani-
decried the role that international relief organisations
tarian intervention will depend to a large extent on the
were forced to play, filling a power vacuum, assuaging
ability of humanitarian organisations to engage the
the conscience of the international community.25 In
interest of political and security authorities in the task
northern Iraq, in Somalia, and again in Kosovo, various
of developing clear, adequate, and practical options for
sets of international political and military actors took
protecting civilians.30 It is also possible that, having
more aggressive action, in each case different, and in
participated in and witnessed a series of failures and
each case with mixed and disputed results. partial small gains, having played a bit part in a drama
determined by others, the humanitarian community
Discussion and force could in future decide to play a significant role in
As we continue through this transition the humanitar- mobilising political authorities around specific pre-
ian community, including those in medical relief ferred strategic options.31 It comes back to the aim of
organisations, must participate in the discussion and creating in times of war a distinct and neutral place for
develop strategies that would maximise the humanitar- civilians, where medical and relief workers can reach
ian resources available under a given set of political the population and build a system of adequate
and security constraints. In settings where the consent supports, sustainable for as long as is necessary. The
of warring parties can be obtained such options end is the same as that described in the fourth Geneva
include establishing humanitarian corridors, deliver- Convention of 1949, but the means no longer obtain.
ing targeted relief, planning the safe exit of a The world and its wars have changed, so other means
population from an emergency, and creating protected to secure that same high purpose have to be developed
areas. and deployed.
If the warring parties do not consent and civilians
continue to be at risk, the international community
must consider using force to uphold international Competing interests: None declared.
humanitarian law. The UN Security Council might
consider intervening under chapter VII to re-establish
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