IRIN Web Special on Civilian Protection in Armed Conflict

IRIN Interview with Francoise Bouchet-Saulnier, Legal counsel for Medecins Sans Frontieres in Paris and author of the "Practical Guide to Humanitarian Law", Littlefield Publishers (2002).

QUESTION: Given talk of the inadequacy of IHL to protect civilians, why does humanitarian really matter - and what are its strengths and weaknesses?

ANSWER: When people say IHL is inadequate, they refer to a widespread but wrong idea that IHL is not relevant to internal conflict or for non-state actors.

In some regards, such discourse could amount to intentional misinformation because it deliberately omits mention that the four Geneva Conventions of 1949 were updated in 1977. Two additional protocols have then expanded the scope of IHL precisely to take into account wars of decolonisation, civil wars, internal armed conflicts and guerrilla warfare.

In other words, the so-called "new problems" arising from such conflicts are already addressed by IHL, but this is rarely mentioned.

The main strength of IHL is that it links power with responsibility in the use of force - no matter who has the power and who is using armed forces. The Geneva Conventions and the 1977 protocols do not enter into qualification debate over 'legitimate military actors' like national armies. They just bind those engaged in military activities, with responsibility to respect IHL.

Non-state actors can be held responsible for crimes but state actors are not always respectful of international law either. The difference between state and non-state actors is not so relevant today because all these actors are mixed. National armies often rely in a more or less clandestine way on militias and other private armed groups, as we see today in Cote d'Ivoire or as we experienced during the war in the former Yugoslavia.

The weak point about IHL is that, in practice, states prefer to keep pretence in their ways of managing conflict. They prefer to manage conflict with power, rather than with legal constraints.

But this is a very ancient trend; it's not new at all. It might be the greatest weakness of IHL unless it is admitted by states by public opinion that to use force without constraints has not proven to be the most efficient way to solve conflict.

We can see it in Chechnya, for example: the use of force without constraint has not proven useful in solving the conflict. So, it should be now a matter of debate that these legal constraints are really the best tool to reach positive settlements - even in armed conflict.

Q. It has been said that a new concern for the applicability of IHL is the 'war on terror' - a broadly defined war against terrorism identified anywhere in the world. What are the particular challenges this poses to IHL?

A. If you really enter the whole picture of war against terrorism (as it is presented, mainly by the US government), you have to admit that you get rid of the whole IHL system. This concept open up a time of long lasting war, while refusing to respect the legal framework for wartime.

It's very tricky to try to create a new kind of war: 'the war against terrorism', which is a non-existing body of law. That creates an empty space, rather than creating a framework for action.

Existing IHL provides this legal framework and does not forbid most of the actions undertaken by the US: they can take prisoners, they can interrogate prisoners, but all within the legal remit of the law of armed conflict.

Terrorism and non state-actors are not new phenomena. Terror and terrorist method of war are included in the IHL regulations. But the whole IHL system relies on the distinction between civilians and combatants.

If you contest the definition of combatant by calling people terrorists, you also endanger the category of civilians. According to IHL, people using terror as a method of war have to be treated as combatants. They can be prosecuted for their acts as war criminals but not as illegal combatants

The key point of IHL is always to state that, if you solve your problems by means other than armed forces, then you can refer to other bodies of international or national law but, if you resort to the use of armed forces, then international humanitarian law automatically applies.

Q. Does the nature of IHL not allow more for the prosecution of violations of the rules of war, where these occur, than providing for the protection of civilians?

A. There's something very important to note about the word protection. 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.

There has been confusion around the word protection, mainly during the 1980s and '90s, with UN military operations mandated among other missions to protect populations, but with no clear line on the use of force. This confusion has ended up in disaster, like in Srebenica, where people being 'protected' by the UN were massacred, and in Rwanda, where so-called protected people (under the UNAMIR operation) were the subjects of genocide.

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 defense of the legal status and the rights of civilians, and other 'protected persons', in times of conflict.

It states different kind of responsibilities for the respect of these rights:

• Armies and belligerents should refrain from attacking civilians directly and should not deprive them from relief.
• Humanitarian organisations have to monitor the level of protection given or refused by the belligerents to civilians, and to provide necessary relief to civilians.

Humanitarian organisations are not only responsible for delivering immediate needs; they play a role in the legal protection mechanism established by the Geneva Conventions.

Those two issues have to be clarified in the mandates that humanitarian organisations give themselves because, very often, they concentrate on access without reference to this duty to protect - in the sense of monitoring the use of relief and reporting on the fate of civilians.

If you speak about physical protection, you have to refer to international intervention by UN forces under Chapter 7 that are given the specific mandate to use force to protect civilians. In practice, this would transform UN forces into belligerents. That is why the UN has been so reluctant to enforce such mandate.

Protective mandates have recently been given in a very limited way to UN forces in the DRC and in Cote d'Ivoire. They can use force to protect civilians under direct threat, only if violations occur in the vicinity of the location where UN forces are operational and only if they have the necessary military capability.

So, protection relies in practice on a whole network of responsibilities set up by international humanitarian law and refugee law. It is not always well understood and implemented by either humanitarian actors or international forces

Continued?