IRIN Web Special on Civilian Protection in Armed Conflict

Interview with Mark Bowden, Head of Policy at the UN's Office for the Coordination of Humanitarian Affairs

QUESTION: Is it plausible to think that belligerents can be held to reasonable and legal behaviour in their military activities?

ANSWER: In this instance, protection of civilians is not about looking at the reasonableness of belligerents but actually ensuring that there are standards and ensuring that those standards are clearly understood.

The reason we have become more involved with the protection of civilians is precisely because the nature of warfare has been changing considerably during the last decade or more. Wars are fought in a way that target civilians more, or incorporate them more into the means of fighting.

Unless we are far clearer about what our standards are, we can't hold people accountable. So we need to try to maintain some standards of conflict - at least by outlining what they are.

Q: What do you make of the strengths and weaknesses of international humanitarian law for our times?

A: The protection of civilians is more than international humanitarian law as defined by the Geneva Conventions. The protection of civilians relates to the body of international humanitarian law, refugee law and human rights law that provides the protective framework - and that, I think, is getting stronger.

The International Criminal Court has been a major area where there has been a strengthening of the system and recognition of how to deal with the problems of impunity - as has also happened with the Special Tribunals [for the former Yugoslavia, Rwanda and Sierra Leone, for instance] that have been held over the last two decades.

But there are clearly some very fundamental gaps in the system of protection of civilians. One of them is over the area of property rights and restitution. The ability of displaced people or refugees to regain their property is one of the key areas of protection that helps the resolution of conflict.

The protection of civilians from terrorism and the consequences of dealing with terrorism are also areas that are inadequately covered.

Q: What is done to protect the people that are particularly vulnerable from harm?

A: There is an emphasis in the protection of civilians on the measures needed for vulnerable people, particularly women, children and the elderly, throughout international humanitarian law.

That said, it is important to think of the practical measures that could take place. A great deal more work is being done now on the protection of children from recruitment into military activity, on the problems that exist in terms of sexual exploitation and abuse that take place in times of warfare, and establishing codes of conduct and behaviour for belligerents.

It's quite interesting that the South African National Defence Force, for example, has a very strong code of conduct that is not only based on international humanitarian law and the protection of civilians but also includes the issues of specific responsibilities towards ensuring that there is no abuse or exploitation of women. I think other armed forces are beginning to understand what special responsibilities they may need to develop.

Q: In a given situation of armed conflict, what are the main issues that arise in trying to provide for the physical protection of civilians?

A: It is important to make the distinction between what is civilian and what is military and this is one of the key elements to physical protection. This allows for the separation of the military from civilians.

One of the key ways in which we can provide access to those most in need is by developing a stronger understanding of the need to maintain a distinction between military and civilian.

Q: What additional tools, or implementation procedures, would allow humanitarians better protect civilians in a region or town under fire from combatants?

A: This is a difficult question because it is not intrinsically wrong to attack a town. What it is important to do is to ensure that you focus on military targets rather than civilian targets.

The special tools that you saw in the past - such as safe havens and others - are generally being discounted as ones that actually increase the risk to a civilian population. So I think we have to be careful when going down the route of special tools because most of these have increased the overall risk to the civilian population.

Q: What are the vital issues for diverse and privatised 'humanitarian' agencies to remember while trying to protect civilians in situations of armed conflict?

A: I keep on going back to the importance in international humanitarian law of distinguishing between civil and military - and that applies to humanitarian agencies as much as to the people they are dealing with.

There is a concern that the boundaries have become eroded, particularly where we see the development of companies in West Africa that provide security and get involved in humanitarian actions. And it is that sort of erosion that makes it difficult to maintain the necessary distinctions between the two.

The other important element for the humanitarian community to have is a strong framework for understanding the main threats and issues of protection of civilians. That is why I hope things like the [Security Council-adopted] aide memoire [on the protection of civilian in armed conflict] provide a diagnostic tool that is available for people to assess a situation and to understand the main threats and concerns to which they need to respond.

Q: Is there an intrinsic tension between negotiating access to affected populations with armed belligerents and insisting on unhindered humanitarian access as a matter of principle?

A: No, I don't think there is, because one is policy and the other is practice. You have to realise that access is generally negotiated. You can state the principle but the practicality of how that is achieved is through negotiation.

What is important is to have a clearer understanding among belligerents - and I think this is where there is a weakness in the system.

By and large, formed armed forces understand the rules of war and the principles of international humanitarian law, so negotiation is a lot more straightforward. The real problems lie with informal groups, militias, rebel groups and others who don't see this as applying to them - when, clearly, it does in international law.

Q: In what ways can humanitarian agencies maximise assistance to vulnerable civilians while minimising the chances of belligerents manipulating assistance or the agencies providing it?

A: We in OCHA have already outlined what we see as the value of a far stronger coordination over the protection of civilians and an agreed framework for negotiation.

Structures such as the Somali Aid Coordination Body (SACB) or Operation Lifeline Sudan (OLS) provide far greater coherence in terms of negotiation over humanitarian assistance and in terms of access and protection. So, we need to look far more at a common negotiating structure in areas of conflict.

If humanitarian agencies negotiate all these things individually, it allows belligerent factions to play parties off against each other and ends up in a fairly weak approach to protection.

If all agencies are involved in a framework of protection, we have a far stronger and more principled approach to the protection of civilians in areas of conflict.

Q: In what ways can state actors and non-state armed groups be held to account for the protection of civilians in armed conflict?

A: In many cases, both states and non-state actors are concerned about their own image with donor agencies and their ability to access support and humanitarian relief and are seen to be a legitimate authority. It is an understanding of their responsibilities by the donor and international community that is important for them.

So, part of holding people to account is a public awareness of what responsibilities are and whether they are being discharged. This means having more effective monitoring mechanisms in place but, essentially, relies on a greater awareness from the international community about issues relating to protection of civilians.

But that is at the most general level. Of course, there are specific areas where there is accountability to the International Criminal Court (ICC), which has now come into being.

In cases where humanitarian aid workers are deliberately targeted and killed as a means of stopping humanitarian assistance, this would lead almost automatically to there being a liability at the ICC.

Q: So this would be a minimum threshold beyond which violations would include prosecution at the International Criminal Court?

A: I think that is one of the minimum thresholds. There are other areas. Clearly where you are involved in mass killings, executions, and genocide - these are war crimes and are perceived as such.

The situation is that we now have a stronger international mechanism for dealing with war crimes than we have had in the past, when we had to convene a special tribunal or set up some other mechanism.

Also, more importantly I think, we have a far stronger awareness from all parties. Rebel groups and other belligerents now realise that there is no long-term impunity in the way that they could see it in the past.

Q: If we had a 'balance sheet' of the achievements of and challenges to international humanitarian law, how do you think it would look at this time?

A: Paradoxically, I think that this year it would slightly improved. I say this because I think that the Iraq war demonstrates that there is more debate and awareness over international humanitarian law and its interpretation.

The coalition of forces involved in the conflict are clearly taking into account their responsibilities under the Fourth Convention and are aware of the responsibilities of the occupying power.

There is also a greater sense of the protection of civilians and humanitarian access, as expressed in their very public debates about targeting and strategy. So, where there is a large-scale and more conventional conflict, I think that the balance sheet has moved toward greater awareness.

The other positive development in terms of protection of civilians is where there is a tailing off in long-standing conflict - as in Angola and Sudan.

We now have new issues to face such as the protection of civilians in transitions, which are rather more complex. We shouldn't forget that, even in transition, there is a change and return to peace.

There is still a very clear need to protect civilians, but there the needs are more based on the rights to restorative justice and the judicial needs of civilians.

[see also: Protection of Civilians in Armed Conflict]

[Ends]