New Challenges for Humanitarian Protection

Chapter 17

New Challenges for Humanitarian Protection

Claude Bruderlein and Jennifer Leaning

Introduction

The fourth Geneva Convention, adopted 50 years ago, on 12 August 1949, describes the actions that warring parties must take to protect civilian populations from the worst excesses of war. Building on the concept developed in the previous three conventions—that certain activities and people, especially civilians, can be seen as hors de combat—the fourth Geneva Convention defines in detail the many ways in which civilians must be dealt with to shield them from the direct and indirect effects of conflict between combatant forces.

Among the responsibilities that this convention sets for the warring parties are explicit actions that would grant medical personnel, and all aspects of the medical enterprise, complete protection from interference or harm. This neutral status for medical relief (and, by extension, all humanitarian aid) rests on the reciprocal assumption that those who deliver this relief are practising in accord with their professional ethics and will take specified steps to maintain their neutral posture vis à vis the warring parties.

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 virtually all wars of the subsequent 50 years the fourth Geneva Convention has been variously observed and routinely violated—and there has been no calling to account. Moreover, and this is what prompts new attention to the issue of humanitarian protection in war, in recent wars the warring parties have shown an increasing tendency to flout the fourth convention entirely. The problem is no longer a failure to abide by the rules but a failure to acknowledge that the rules even exist.¹

This failure is particularly relevant for the medical community. Without the guarantees of protection defined in the fourth convention, civilians can be slaughtered with impunity and physicians and other relief workers swept up in the ensuing carnage. Once the notion of civilian protection is abandoned, the terrain of war is changed utterly. At the very moment we celebrate the 50th anniversary of the Geneva Conventions, we find that effective respect for humanitarian protection has reached its nadir.

Traditional Approach to Humanitarian Protection

The traditional legal effort to protect civilians in war has long centred on distinguishing between civilian persons or objects and military targets. This approach was based on two key assumptions: that attacking civilian targets would provide little military advantage; and that, quite apart from their legal or moral obligations, parties to a conflict would thus seek to optimise their resources by targeting military assets. Therefore the most effective approach to protect civilians in international legal treaties on the conduct of war would be to build on this assumed basic military preference and promote the concept of civilian distinctiveness. This approach has inspired the development of international humanitarian law since its inception.

The traditional approach taken by international humanitarian law thus rests on a particular and rational view of military interests and behaviour. However, military strategies from the second world war onwards have departed significantly from this classic perception of the non-military worth of civilian assets. The bombardments of London, Rotterdam, Dresden, Hamburg, Hiroshima, and Nagasaki in the second world war were only the precursors of military tactics aimed at obtaining significant military advantage from the destruction, terror, flight, and chaos caused by attacks on civilians. In the 54 years since 1945, civilians have constituted the overwhelming majority of war casualties.² What has evolved now, with the waning of the cold war, is a pattern of deliberate war against civilians, waged by relatively untrained forces wielding relatively light arms.³ Civilian populations have come to acquire a strategic importance, including:

• As a cover for the operations of rebel movements
  
• As a target of reprisals
  
• As a shield against air or artillery attacks
  
• As a lever for exerting pressure on the adverse party, by terrorising and displacing populations, or even
  
• As a principal target of ethnic cleansing operations and genocide.

In internal conflicts civilian populations are caught in the crossfire between insurgents and state forces and bear most of the casualties. In extreme situations (Rwanda 1994; Bosnia-Herzegovina 1992–4; and Kosovo 1998–9) entire segments of the civilian population have been perceived as a primary military target. Civilian deaths in just these three wars amount to over 1 million people—far greater than the estimated military casualties.

Death is not the only outcome of a war strategy that targets civilians. In the past decade armed conflict has turned over 40 million people into refugees or internally displaced people. The consequences of such displacement are severe and include:

• Breakdown of the social fabric and disintegration of communities
  
• Production of chaotic situations, where the mixture of civilians and combatants puts civilians at risk and endangers medical and humanitarian relief workers
  
• Disruption of family groupings, exposing women and girls to sexual violence, prostitution, and sex trafficking
  
• Forced military recruitment of children, sending those as young as 7 years old into battle.

In addition, warring factions have increasingly denied civilian populations access to humanitarian relief. They defend their actions by appealing to the principle of national sovereignty. Within their national boundaries these warring parties block relief convoys, obstruct ambulances, invade hospitals, destroy clinics, and harass and terrorise national and international medical and other humanitarian relief workers.4–8 In these circumstances the assumption in international humanitarian law that civilians would be protected simply by establishing their distinct nonmilitary character seems outdistanced by recent changes in warfare and thus fundamentally flawed. In the absence of alternative credible and effective enforcement mechanisms, it would seem that the international community can offer little help to civilian populations targeted in today’s wars.

Possible New Strategies

The international community has thus been compelled to reconsider its approach towards protecting civilians. When states or parties to conflicts are unable or unwilling to protect civilians during armed conflict, the international community must develop specific mechanisms to ensure that protection. To that end, new strategies are being developed to expand the concept of humanitarian protection and to consider new alliances with other potential enforcement agents, including the United Nations Security Council and regional organisations and their military outfits.

Accordingly, human rights and humanitarian organisations are pursuing three distinct strategies to bolster the protection given to civilians: reasserting the role and validity of international humanitarian law, and developing new judicial implementation mechanisms; expanding the scope of humanitarian protection; and diversifying the implementation strategies of humanitarian protection, involving the use of various diplomatic and coercive measures, including the use of force under chapter VII of the UN Charter.

Reasserting the Role of International Humanitarian Law

The first strategy has been to recall the objectives of international humanitarian law and promote further efforts nationally and internationally for enforcing these rules. International humanitarian law is seen as essential in determining the illegal character of violence perpetrated against civilians in war. It should therefore be at the centre of any strategy to protect them and to restore the integrity of international law. The proponents of this approach, particularly the International Committee of the Red Cross, acknowledge that war has changed and that civilians have increasingly become the objects of attacks. In their view, however, violations of law do not necessarily signify its obsolescence. On the contrary, international humanitarian law remains highly relevant in contemporary conflicts (such as instances of ethnic cleansing and failed states) and serves to mobilise considerable efforts to further its application.

The key focus of these efforts has been to strengthen international judicial institutions. The culture of impunity that shelters individuals responsible for violent assaults against civilians is one of the biggest obstacles to protecting civilians in most conflicts. The unwillingness or inability of states to bring these people to justice undermines the effectiveness of the entire legal framework. An international remedy for such situations has been identified in the establishment of an International Criminal Court and the creation of the two ad hoc tribunals for the former Yugoslavia and for Rwanda by the UN Security Council.