IRIN Web Special on Civilian Protection in Armed Conflict

IRIN Interview with James Darcy, Research Fellow, Humanitarian Policy Group of the Overseas Development Institute, Britain

QUESTION: Is there some confusion between a general sense of protection of civilians and the concept of protection provided for under international humanitarian law?

ANSWER: There are, loosely speaking, two schools of thought. The traditional school would limit the concept of protection to the kind of provision that is made in the Geneva Conventions and protocols - and that is a relatively narrow version.

It's primarily based around a set of obligations on warring parties to refrain from certain sorts of actions in the way they conduct war. It's about setting limits on the conduct of war.

The other school of thought takes a broader approach, based on protecting human rights, but this is less well defined. There's very little - almost nothing - in the Geneva Conventions about rights. In fact, rights is not a concept that particularly informs the Geneva Conventions. It's about duties, and about setting limits on conduct more than anything else.

At a conference recently on The Responsibility to Protect (the Canadian-inspired initiative) one of the interesting things that emerged, for me, was that people were, at certain points, talking about very different conceptions of protection.
[document at www.dfait-maeci.gc.ca/iciss-ciise]

There is some confusion between the traditional, rather narrow, 'responsibility to refrain' from certain kinds of action (attacking civilian targets and so on) and a much broader concept of proactive protection, requiring active intervention by third parties in certain circumstances to protect civilians - encompassing prevention of violent conflict and post-conflict reconstruction, as well as response to violations.

It was broader also, in the sense that it ranged across the spectrum of human rights, so that we started to talk about any action that looked to protect human rights, although armed intervention to protect people is envisaged only in the most extreme cases.

I think there's a need for greater clarity on this: how broad within the human rights spectrum you're going to look at. I think you can, plausibly, fit traditional concepts of protection within a human rights framework, but how small a subset of that human rights framework should we be concerned with?

There are important consequences that flow from how broadly, or narrowly, you set the parameters on this, both in terms of institutional policy and general strategies.

Q. Would ODI's concept of protection be the broader or narrower one, and how does protection fit into the humanitarian policy framework?

A. Firstly, I think we need to be aware of the distinction; if we're not aware that we're talking about different things at different times, then we've got a problem.

We would start with the narrower conception. Indeed, I think there is a case to be made for keeping the concept of humanitarian protection relatively narrow - just as there is an important sense in which the whole humanitarian project should be seen to be a limited one, and part of its value lies in its limits. It doesn't seek to do certain sorts of things and that would apply to assistance strategies as much as protection strategies.

There is a strict limit on what kinds of outcomes it's possible to achieve through humanitarian action and I think it's important to recognise that - and to recognise the limits of responsibility that go with that.

Humanitarians have often been very good at taking on themselves responsibility for things that actually are not their responsibility. Often they do not have the means to fulfil their stated objectives, and in attempting to do so, they blur the lines of responsibility. I believe that we need to define those responsibilities very clearly.

But of course it's a crucial part of the humanitarian endeavour both to identify those responsibilities and to pursue a strategy to achieve their fulfilment… what the ICRC would call résponsibilisation - in other words, holding responsible those who are responsible for the welfare and protection of civilian populations.

Q. What policy challenges does IHL present to the range of very diverse humanitarian agencies, all claiming to be acting in pursuit of the humanitarian imperative?

A. First of all, IHL does not directly govern agencies' actions. It does, however, set a framework within which issues of relief access etc. may be decided.

The challenges come more from the ability of agencies to act according to basic principles of humanitarian action. The Geneva Conventions require that an agency offering its services should be "humanitarian and impartial", and it's fair to say that there's often a lack of understanding as to what that entails.

While the principle of humanity is what motivates action, impartiality requires an even-handedness, consistency and objectivity that is hard to maintain. In practice, adherence to the principles of independence and neutrality may the essential prerequisite to being able to provide impartial humanitarian services.

True adherence to a principle of neutrality - including 'neutrality of effect' - requires a set of operational elements that I think a lot of agencies struggle to put in place.

It requires you to be very sure what is happening to any input you are making into a given situation; to minimise the chances of relief aid, for example, being diverted; to be very clear how it is your actions are being perceived, and so on.

In other words, there are all sorts of operational strictures that go with the principle of neutrality that I think many of the non-traditional humanitarian agencies - the new breed, if you like - certainly struggle to adhere to, or may even be unaware of.

Even those that proclaim adherence to a principle of neutrality - and, of course, many don't; many would say 'we're not neutral and we don't claim to be' - find it problematic in some ways.

And there are also agencies that espouse the principle of neutrality when it suits them to do so; it's about maintaining the appearance of non-alignment in a given situation.

I would say, as a general principle, a humanitarian agency has no business taking sides in a given conflict but neutrality requires more than that: it's not just that you don't openly espouse the war aims of one party or another, it's also about the effects of your practice - whether, in practice, what you do helps further the war aims of one party or another, and how that is then perceived.

I think many agencies struggle to work that through in practise.

Continued