IRIN Web Special on Civilian Protection in Armed Conflict

IRIN Interview with Francois Bugnion,
Director of International Law and Cooperation,
International Committee of the Red Cross (ICRC)

QUESTION: There seems to be confusion between protection, as commonly understood, and the protection offered under IHL. Is there a danger in this, and what are the implications for humanitarian agencies?

ANSWER: There is often confusion about what is meant by protection. Within the ICRC, we would consider that protection is always connected with law: defending the victims of war according to their rights, ensuring that their fundamental rights and dignity are respected.

Q: Is it plausible to think that belligerents can be held to reasonable - and legal - behaviour in their pursuit of war?

A: I do understand the question. Since, under the UN Charter, war is prohibited except under specific conditions, it may seem strange to talk about regulating war. It's a little as though we would say to a burglar: 'Theft is forbidden, but in the event that you are committing theft, please make sure that you don't damage the furniture.’

However, the fact is that rules limiting the violence in war can be traced in all civilisations, and throughout history. They respond to a very definite necessity: that unless those rules exist and are respected, war would lead, inevitably, to unlimited violence.

And we know what unlimited violence means - or at least we can imagine where it would lead humanity very quickly. It would mean utmost destruction. So, rules limiting violence in war are also a means of survival.

Q: Are there implications in the rise of internal violence, transnational war and international terrorism with which IHL cannot cope?

A: One has always to distinguish whether the law is deficient or whether the law is not respected. If there is a car accident, it doesn't automatically mean that the law is inadequate; it may be that the driver was drunk or careless, or that he was driving too fast.

In most cases, the ICRC tends to consider that the main problem is lack of respect for existing rules and not lack of adequate legislation - at least as far as international armed conflicts are concerned.

There was very recently a meeting of experts on that issue [at the end of January in Harvard, USA] and, very quickly, all these experts, from different countries, came to the conclusion that humanitarian law is relevant and must be implemented - and that the main issue is lack of, or inadequate, implementation of existing tools.

Q: If the main problem is implementation, is there a case to be made for establishing a minimum threshold, beyond which violations of IHL will automatically bring certain specified sanctions into place?

A: A minimum threshold could be a possibility, but what do we mean by sanctions? This should, of course, be defined.

However, I believe that in many cases it boils down not to a legal issue, but to a political issue. First of all, is there on the side of the belligerent parties a real will to respect the law? And is there, then, on the side of non-belligerent parties - of neutral states, third states - a real willingness to see to it that the law be respected? I would say that those are the two key elements.

Q: Does the move towards more internal and transnational wars make implementing IHL that much more difficult?

A: Yes, because humanitarian law developed as law between states, and aimed at regulating relations between states - which means, also, organised political units.

Now we should, of course, be very clear that states can also be responsible for major violations of humanitarian law, or crimes, and it would be totally wrong to accept an equation according to which states respect the rules and non-state armed actors do not.

If we remember the Second World War, and other events and atrocities that have been committed, these have been in the name of states and, often, by order of states. The fact that such acts were criminal - in the case of Nazi Germany or other criminal leaderships, let us say - does not alter the fact that these were acts of states, and crimes of states.

That being said, as far as international humanitarian law is concerned, states have been reluctant to accept rules regulating their relations with insurgent parties. For centuries, there was complete resistance to any form of regulation of non-international armed conflicts by international humanitarian law - leading to unlimited violence.

It's only during the 20th century that, very progressively, states have accepted a minimal set of rules that would apply in non-international armed conflicts: basically, Article 3 common to the four Geneva Conventions of 1949 and the second Protocol, additional to the Geneva Conventions, adopted on 8 June 1977.

But these are really minimal regimes, and the level of protection they offer to noncombatants, to civilian populations, to persons detained, is really very basic.

So, of course it makes humanitarian action in such situations much more difficult.

Q: Is the nature of IHL more about prosecuting those who commit crimes in war than the prevention of those crimes being committed?

A: Certainly not, and prosecution is essentially a fairly new phenomenon, still far from being generalised. Even though rules on the prosecution of war crimes had existed for decades, the willingness to implement them and to prosecute war criminals has been either very limited or totally nonexistent.

It's only a few years back with the setting up of the International Criminal Tribunals for former Yugoslavia and Rwanda [ICTY and ICTR] - and, more recently, Sierra Leone - that the initial steps towards a more systematic repression of war crimes were taken. And the International Criminal Court has only been established a few days ago with the election of the judges; it is not yet operating.

So, what happened in the last few weeks, months or years should not obscure the situation that existed for decades.

No, the essence of humanitarian law is, first of all, to regulate the behaviour of belligerents during armed conflict.

Prosecution of war crimes is, of course, important as a deterrent element and to restore the authority of the law once major violations have been committed, but, certainly, I would not accept the view that the basic aim of IHL is in prosecution.

The basic aim of road traffic laws is certainly not to fine people, but to allow the possibility of using roads with a significant degree of safety - and the same is true of humanitarian law: its basic purpose is to limit the forms and effects of violence in situations of war, and to protect noncombatants and war victims.

Q: What are the vital issues for the new diversity of aid agencies in trying to protect civilians during armed conflict?

A: The vital areas? The key element is respect of international humanitarian law by the belligerents. And also, I would say, minimal order.

The major difficulties with which humanitarian organisations have been confronted over the years are not logistics or even financial constraints, but, much more conspicuously, constraints deriving either from blatant violations of international humanitarian law - and in particular the rules protecting civilians - and the development of almost unlimited criminality on the occasion of warfare.

Q: In what ways can humanitarian agencies optimise their assistance to vulnerable populations while minimising belligerents' manipulation of them, or their assistance?

A: I think there are a number of guidelines or operational principles that have to be followed. A key element, of course, is professionalism: to have duly trained personnel.

And, I would say, to avoid manipulation, agencies should make their own evaluations of need on the spot, they should be present during distribution and ensure an adequate system of reporting - or, if you prefer, ensure transparency.

If humanitarian agencies are clear on such elements - that they react to needs that they have determined by themselves, that they react to their own evaluations of the needs of the victims, that they're personally present whenever distributions take place, and that they're transparent about the use they are making of goods and funds put at their disposal - that will offer reasonable protection against the risk of manipulation.

Q: Can you foresee any way in which one could leverage a consistent interest in the protection of civilians in armed conflict - the "culture of compliance" of which UN Secretary-General Kofi Annan has spoken?

A: Certainly, there is a wide range of measures that have to be taken. Prior to conflict, first of all: dissemination - making the law known - because if soldiers, combatants, the civilian population understand at least the basic principles of humanitarian law, this already reduces the risk of violations.

Adequate legislation at the national level is also important, so that people understand that their own rules and the legal mechanisms of their own countries will be used to repress violations; that a crime committed on the occasion of war is nevertheless a crime, that a rape is nevertheless a rape, and will be dealt with as a rape - and will be punished as a rape. This is, of course, one important element in ensuring respect of existing rules.

The second element is the duty of monitoring what happens, and reacting to violations by the states [which are] parties to the Geneva Conventions. Public opinion and the media certainly have a responsibility in this respect.

And the third element is, of course, that crimes do not go unpunished

If these three elements are brought to bear, prior, during and after conflict, I trust that a "culture of compliance" could be achieved, so as to minimise the bloodshed, damage and suffering caused by war.

This being said, war is - and will remain, unfortunately – a relation of violence. It will still be characterised by death and tremendous suffering. But excesses, crimes and massacres can and must be avoided - even in war.

[Ends]