Interview with Elissa Golberg, Deputy Director, Human Rights, Humanitarian Affairs and International Womens 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 were 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 its 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 its the aid agencies themselves or donors trying to support them. Thats access to the actual affected, civilian population, and physical security of civilians, as well as humanitarian workers.

Its not a fundamental challenge to IHL as such, in so far asthese things are covered within it: provisions for full and unhindered access for neutral and impartial organisations is addressed for example. Its more of a practical challenge in order to protect civilians. Were 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: Its not that theres 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: ŽThere 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. Its 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/documents/scres.htm]

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 Žunpacking 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 weve got things like The Sheltering Tree – thats an inter-agency field manual developed by UNICEF and OCHA and the other members of the Inter-Agency Standing Committee.
[see: www.unicef.org/pubsgen/sheltering-tree/]

Canada funded part of it and its an amazing tool. Its meant to be a living document, and provides practices gathered from the field on how individual agencies have tried to do protection.

Theres 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 its not theoretical. Its 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 its 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: ŽWell, protection, thats just UNHCR, ICRC or UNICEF.' But in fact its 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 thats OK, thats 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.