IRIN Web Special on Civilian Protection in Armed Conflict

Q. What role can tools or implementation procedures - for instance, the Security Council's aide memoire - play in allowing humanitarian actors improve the protection of civilians?

A. This refers to what I said previously about the meaning of the word protection. If it is an aim of war to forcibly displace people, there is no way - except by force - that you can stop this.

But you can be an advocate, bear witness to the pattern of violence imposed on the population. By doing so, humanitarian organisations can trigger other mechanisms of responsibility that are not humanitarian but, rather, political or military.

Humanitarian law is not an end in itself: it has no power to stop war or to find peaceful settlement, or to give military protection to civilians. But it has the power to limit the level of violence on civilians to an acceptable level - meaning that they can survive the war.

If this threshold is crossed, humanitarian actors have to trigger other mechanisms involving states responsibility to respect and make IHL respected.

For instance, during the genocide in Rwanda, we had to say: 'This is not any longer time for humanitarian action; one cannot stop genocide with doctors.'

IHL includes such 'trigger mechanisms'. There has been a trend to put the international political and military management of crises under the flag of 'humanitarian action' but it should be kept separate in order to allow for an effective action of these trigger mechanisms.

The Security Council has a responsibility in terms of defining, politically, what is an acceptable international and national order. It can set out clearly to governments the level of violence that is admissible against populations and the level that will trigger international sanctions, up to military action.

So, humanitarian, political and military are three very different areas that should remain clearly separate in order to remain efficient. And we should also clarify the trigger mechanisms that will allow us to skip from one to the others at the international level.

Q. Is there an innate tension between negotiating access with armed combatants and the principle of unhindered humanitarian access under IHL?

A. Negotiating access with armed combatants is not a problem, in the sense that it creates responsibilities on them. If you don't negotiate, if you don't dialogue with the ones that have power, you will not create responsibility on the part of belligerents.

The whole philosophy is IHL is to link power with responsibility. It's very important that, in the field, relief organisations engage in negotiations with belligerents in order to set up what kind of responsibilities these belligerents accept and endorse - towards the populations they control and towards relief organisations.

This is an important process but it has to have limits because negotiation means that you will not give up everything for the sake of access. IHL gives key references about what is acceptable and what is not. This opens up the question of whether international relief organisations have enough knowledge of their responsibilities under IHL, especially with many relief agencies having a development rather than armed conflict background.

We also have to make clear that access is not an end in itself. There has been a debate about having armed escorts to grant access to humanitarian organizations. This is not the right answer (except in some specific situations, where it might be the last resort).

Giving security to humanitarian organisations is not enough, because humanitarian activity is supposed to give security to civilians. If you only protect relief agencies, you can increase insecurity on the civilians; you can make humanitarian action a target, a stake in military strategy; you can endanger access in areas under different military control.

In negotiating access, it's very important to make clear that humanitarian action is not under military control - but under military responsibility not to target us and not to target the civilians. So access is a little bit more complicated than the slogan sometimes referred to.

Q. Do you think the development of Memorandums of Understanding or rules of engagement is an important development?

A. Rules of engagement really conjure up UN military operations and clarify what can be expected of these, and clarifies also what limits and what load they will take. This is important in allowing us to clarify the mission, duties - and also the limits - of UN military forces.

What is very important also is that humanitarian action should be kept separate from these constraints of UN military engagement.

For example, we [MSF] always ask for the right to be allowed in areas where there is no security given by UN forces. We have to make it distinct that humanitarian action should be allowed everywhere and not only in areas where UN forces are deployed, and that it should not be used to serve "hearts and minds" campaigns supporting military operations.

Q. Is there a case to be made for establishing a minimum threshold that would automatically bring certain sanctions - for instance, military intervention or prosecution at the ICC after a massacre of civilians?

A. It is only the UN Security Council that has the power today to decide what constitutes a threat to international peace and security, and, thus, justifies the use of international forces. But the Security Council is not willing to be bound by any external doctrine or rule. In some cases, it has decided that massive violations of human rights and humanitarian law were endangering international peace and security.

The whole debate about redefining the role of peacekeeping operations that started with the Brahimi report and the UN Secretary-General's report on the protection of civilian populations focuses on this question. But the answer is very cautious at the moment.

The UN reports acknowledge that the international military protection of civilian populations is out of reach at the moment, so they advise not to give civilians in situations of armed conflict the illusion that UN forces will protect them.

Deprived of this possibility, the international community has decided to rely on other solutions. One of the other main solutions today is the judicial sanction that has been initiated with the creation of the two international ad hoc tribunals for former Yugoslavia and for Rwanda - and, more recently, with the creation of the International Criminal Court (ICC).

Q. Is the ICC, then, an important new tool of IHL or is it flawed from the beginning by the lack of participation of many countries, notably the US?

A. I think it's a very, very important tool for IHL.

Although I mentioned that IHL focuses mainly on prevention and protective action - its goal is to protect the life of civilians during armed conflict rather than prosecute criminals after their mass murder - nevertheless, sanctions remain the last way to enforce IHL by setting the price to pay for violations.

This is very important and the ICC has created this 'threshold' you mention for international action because the Court will be competent for war crimes and crime against humanity - in particular, when committed as part of a plan or policy, or as part of the large-scale commission of such crimes.

This threshold included in the ICC statute is a good thing because it will avoid the court being paralysed from the beginning, as it would have been if were set up to try all individual war crimes perpetrators.

The refusal of the United States to ratify the ICC status is sad but it will not destroy the main achievement of this court.

The ICC focus is on individual penal responsibility. It means that perpetrators can belong either to state or non-state actors. All [alleged] criminals are going to be submitted to this judicial examination. It will be up to the ICC to determine the scope and level of individual responsibility, looking at the chain of command and the nature of [alleged] crimes.

Starting with individual penal responsibility, it will open up the possibility to try state and non-state actors at the same level.

The ICC will strengthen national systems' capacities to judge such crimes. The ICC will only be competent in case of failure from national courts. This will also lead to a great improvement for IHL, which is its real incorporation into domestic law.

The ICC will help to re-create national responsibility towards these crimes of war. It will help to bring these crimes seriously into consideration and to have them brought to trial.

On the one hand, the ICC reaffirms the national duty to try war crimes; on the other hand, it fills the gap to avoid situations of impunity if the national judicial system is complicit - as occurs in some instances - or ineffective for tackling impunity for massive violations of international humanitarian law.

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