HPCR IHL in Action Blog

Weekly News Roundup: Monitoring, Reporting, and Fact-finding

Rob Grace — Thu, 29 Nov 2012 20:10:40 +0000

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IHL in Action

[As part of its research and policy project on monitoring, reporting, and fact-finding (MRF), the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University aggregates news detailing recent developments in this domain. For more information about this project, visit the project’s webpage. For additional research materials, visit the HPCR Digital Library of Monitoring, Reporting, and Fact-finding, which provides a searchable database of primary resources from numerous MRF missions implemented over the past decade.]

November 23, 2012 was the one-year anniversary of the publication of the report of the Bahrain Commission of Inquiry (BICI), mandated in 2011 by Bahraini royal decree. To mark the anniversary, the Project on Middle East Democracy published a report assessing the impact of the BICI report. A four-member United Nations assessment mission will travel to Bahrain in December to discuss with the government the implementation of the BICI’s recommendations.
Chaloka Beyani, the Special Rapporteur on the human rights of internally displaced persons, completed a nine-day visit to Sudan.
The United Nations Security Council renewed the mandate of the United Nations Interim Security Force for Abyei (UNISFA). The mandate “[r]equests the Secretary-General to ensure that effective human rights monitoring is carried out, and the results included in his reports to the Council, and calls upon the Government of Sudan and the Government of South Sudan to extend their full cooperation to the Secretary-General to this end, including by issuing visas to the concerned United Nations personnel (...).”
A spokesman for the United Nations stated that the African Union-United Nations Mission in Darfur (UNAMID) is “gravely concerned over the escalating violence in North Darfur.”
The United Nations Operation in Cote d’Ivoire (UNOCI) expressed support for an Ivorian governmental inquiry into a mass grave discovered in October.

How Does Armed Conflict Affect Mental Health?

Rob Grace — Tue, 27 Nov 2012 21:26:33 +0000

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IHL in Action

A recent paper — “Characteristics of the Colombian armed conflict and the mental health of civilians living in active conflict zones” — published in the journal, Conflict and Health, provides a valuable analysis of the effect of armed conflict on mental health. The paper uses clinical data provided by Médicins Sans Frontières (MSF) to test, as the paper states, “the prediction that more severe exposure to conflict violence would be associated with more serious psychopathy.”

Contrary to this prediction, the study found that “some of the most serious [mental health] outcomes, like suicide-risk, depression and aggression, were linked equally or more strongly to experiences not directly associated with the conflict.” The authors conclude:

It is important to understand armed conflict as having a systemic effect on the risk for mental illness, which, while also including direct experience of conflict-related violence, will also include disruption to social support networks, increased anti-social behaviour, poverty, a limited ability to access essential services and range of other interconnected effects.

A previous assessment, conducted by MSF in 2009, of the mental health effects of Colombia’s armed conflict, also found a high rate of mental health effects for individuals with no direct exposure to the armed conflict. This paper concludes:

In armed conflict contexts such as the one in Colombia, the links between direct, structural and cultural violence cannot be overlooked, since these forms of violence feed into each other and are interconnected. (...) Our project recorded a high demand for mental health services, both in the population affected by the conflict and in other vulnerable groups. This demonstrates that the need for this type of care is not being addressed by the public structures in the area.

Such analyses suggest the gravity of the stakes of the current peace talks geared toward ending Colombia’s armed conflict and also offer policymakers guidance for developing responses in other armed conflict contexts. For more information on humanitarian support in the area of mental health during armed conflicts, see:

“Mental health and psychosocial support for conflict-related sexual violence: principles and interventions,” World Health Organization, 2012.
L. Dimitry, “A systematic review on the mental health of children and adolescents in areas of armed conflict in the Middle East,” Child: Care, Health, and Development, Volume 38, Issue 2, pp. 153-161 (March 2012).
EC Schizoph, “Mental health and psychosocial consequences of armed conflict and natural disasters,” International Journal of Social Psychiatry, Volume 57(S1), pp. 57-78 (2011).
Leonard Rubenstein and Anjalee Kohli, “Mental Health Services During and After Armed Conflict: The State of Knowledge and Practice,” Peace Brief, United States Institute of Peace, September 2010.
Theresa Stichick Betancourt and Kashif Tanveer Khan, “The mental health of children affected by armed conflict: Protective processes and pathways to resilience,” International Review of Psychology, Volume 20(3), pp. 317-28 (2008).
Theresa S. Betancourt and Timothy Williams, “Building an evidence base on mental health interventions for children affected by armed conflict,” Intervention, Volume 6, Number 1, pp. 39-56 (2008).
Lisa J. Laplante and Roxana Castellon, “Expanding the Definition of the Right to Mental Health: Attending to Victims of Political Violence and Armed Conflict in Their Communities of Origin,” Essex Human Rights Review, Volume 2, Number 1, pp. 38-56 (March 2005).

How to close the gap between law and practice in targeted killing

hpcr — Tue, 28 Aug 2012 19:01:49 +0000

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IHL in Action

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Guest Writer:

Gabor Rona

Taliban vaccine ban: new setback for polio prevention in Pakistan

Anaïde Nahikian — Tue, 21 Aug 2012 21:08:05 +0000

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IHL in Action

The ongoing fight against polio in Pakistan has suffered a significant setback, as Taliban leaders in the tribal areas have banned all vaccination programs in the region. Hafiz Gul Bahadur, a prominent commander of a Pakistani Taliban faction in North Waziristan, has prohibited anti-polio immunization campaigns in protest of ongoing U.S. drone attacks, prompting leaders in other tribal areas to do the same.

Last year, 198 polio cases were reported in Pakistan — an increase from the 144 reported in 2010 — making 2011 one of the “worst performing years fighting polio in more than a decade”, despite the government’s recent introduction of a National Emergency Plan and a task force to combat the disease. The high prevalence of the disease has been stated a “national emergency” and triggered renewed international and local anti-polio efforts, particularly in tribal areas. Now, as government officials try to negotiate with tribal leaders, 240,000 children will likely be affected if polio drops are not administered in North and South Waziristan. Gul Bahadur has announced that anti-polio teams would be granted access into the tribal belt only if and when U.S. drone strikes stop.

In addition to the ongoing controversy surrounding the U.S. drone strikes in Pakistan, the anti-polio program ban comes in the wake of the recent sentencing of Dr. Shakil Afridi. Afridi was found guilty of treason for assisting the Central Intelligence Agency (CIA) in locating Osama bin Laden’s compound in Abbottabad under the cover of a vaccination drive. As a result, suspicion about health workers has increased, and Taliban leaders have used this incident to promote their position on the ban. Evidently, humanitarian agencies have felt the fall out in Pakistan following the CIA implicating aid workers in its operations, which undermines the humanitarian principles of neutrality, impartiality, and independence; fuels existing political tensions; and leads to the obstruction of life-saving assistance.

This situation presents a number of challenges for humanitarian teams in Pakistan, particularly those engaged in vaccination campaigns. America continues to defend its drone program on the basis of the existence of an armed conflict with Al-Qaeda and the U.S.’s right to self-defense, while the Taliban continues to fervently argue against the strikes. Local spokespersons argue that the citizens of Waziristan ought not receive “benefits from such a benefactor who spends billions on the eradication of polio on the one hand, but also kills people on the other.” Furthermore, the Taliban argues in a pamphlet that it recently published that the continuous drone strikes physically and psychologically harm far more innocent civilians than does polio.

In the midst of this political deadlock, some argue that withholding critical preventive medical treatment for innocent children for political purposes is unacceptable. A process of mediation at the political level between local Taliban leaders, the Pakistani government, and humanitarian agencies will be necessary to ensure that the children of these tribal areas will no longer be the victims of political power-play. According to Dr. Bruce Aylward, Assistant Director-General of Polio, Emergencies and Country Collaboration at the World Health Organisation (WHO), those living in these regions will “come to understand that their children are now the only children in the world at risk of being paralysed for life, and that the local leaders hold the future of those children in their hands.”

Mediation at the leadership level will facilitate the safe access of health professionals in the tribal regions, allowing humanitarians to negotiate clear terms of access for vaccination and ensuring that agencies are able fulfill their mandates while simultaneously maintaining the security of their staff in restricted environments. Professionals should come to a consensus regarding their current activities in the tribal regions and determine a set of protocols for effective vaccination where possible. At the local level, according to Aylward, this means addressing the primary concerns linked to these programs, fully engaging local health workers in vaccinations, and developing an approach that is appropriate and sustainable in the intended communities, in order to finally eradicate this preventable disease.

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Briefing Note: On Target? Drone strikes, legitimate military objectives, and civilian casualties

ofiliomayorga — Fri, 10 Aug 2012 13:55:40 +0000

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IHL in Action

Accounts of U.S. drone strikes in Pakistan, Yemen, and Somalia abound. In most cases, news agencies highlight the killing of a top Al-Qaeda member or “suspected” terrorists hiding in dubious militant compounds. AFP recently reported a new drone attack that killed at least 7 people in North Waziristan, a Pakistani tribal district near the Afghan border. Although the victims were not identified, local security officials said all of them were militants. But the Bureau of Investigative Journalism (TBIJ), a British NGO that tracks CIA drone strikes, cautioned that three of the victims may have been innocent civilians.

At least two conclusions may be drawn from this example. First, the U.S. policy of targeted killings is not limited to “personality strikes”, which are aimed at known high-value suspected terrorists; it also covers “signature strikes”, targeting groups of unknown individuals who have been determined, through surveillance, to exhibit certain patterns of activity commonly associated with terrorist operations. Signature strikes increase the risks of target misidentification and collateral damage.

Second, the actual number of civilian casualties from drone strikes will remain highly contested. On the one hand, the numbers provided by the United States minimize the total of civilian deaths because U.S. counts all military-age males found in a strike zone as combatants or potential co-belligerents of Al-Qaeda. On the other hand, human rights groups may be more inclined to count persons whose status is unconfirmed as civilians, thus reporting a higher number of civilian casualties.

The issue that lies at the heart of the controversy around the U.S. drone program can be framed in one simple question: who can be targeted? Unfortunately, there is currently little consensus among scholars, decision-makers, and humanitarian actors. The answer depends on the legal framework that governs targeted killings.

The United States has defended its drone program mainly on the basis of the existence of an armed conflict with Al-Qaeda and its right of self-defense. The laws of armed conflict authorize belligerents to attack members of an organized armed group, such as Al-Qaida and affiliates, as well as any civilians taking direct part in hostilities. Because targets are considered legitimate by virtue of their affiliation with an armed group or their function in an armed conflict, the United States asserts its right to target individuals even outside of the traditional battlefields. According to this interpretation, the laws of armed conflict follow the individual wherever he or she goes. Moreover, reliance on the right of self-defense allows the United States to preventively target individuals who purportedly pose an imminent threat, without the need to establish the target’s connection to the armed conflict between Al-Qaeda and the United States.

So long as targeted attacks from drones comport with the principles of distinction, proportionality, and precaution, personality or signature strikes are likely to be consistent with the laws of armed conflict, even if civilian casualties ensue. After all, in times of war, knowing the name or identity of a legitimate military target before an attack is irrelevant. Some argue that the precision and accuracy of drones make them the most humanitarian weapon available, since the likelihood of indiscriminate attacks is substantially diminished. This alone may justify tightening the legal standards of proportionality and precautions prior to an attack so as to minimize unnecessary civilian losses and target misidentification, which will ultimately subject drone strikes to much closer scrutiny.

That said, the most precarious aspect of the U.S. drone program is not the use of drones itself, but the arbitrary designation of individuals to a terrorist group and the relaxation of the standards and criteria for determining who is a legitimate military target.

At present, merely being suspected of engaging in terrorist activities seems to warrant the deprivation of life without due process of law. Given the technological advantages of drones and the secrecy of the CIA drone program, carrying out targeted killings outside of the traditional battlefield may have become too easy. As a result, human rights advocates are pushing for the application of law enforcement standards and human rights law to the conflict with Al-Qaeda and terrorist organizations, in order to ensure the adoption of alternatives to the use of deadly force as a first resort (i.e., capture). Additionally, human rights law may be less tolerant of collateral damage, even if proportionate in relation to the military advantages of an attack.

As a policy matter, it is important that a consensus on the standards and criteria for targeted killings be reached, particularly as other countries may develop their own drone programs in the future. And despite the lack of effective legal mechanisms for the enforcement of international law, the United States has an incentive to comply with the laws of war in order to prevent Al-Qaeda from using drone strikes as a recruitment tool. But as long as the American public continues to perceive targeted killings of suspected terrorists as legitimate, there will be little incentive for other branches of the U.S. government to limit the Executive’s current policy of targeted killings.

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The Promise of Social Media in Humanitarian Crises: Community Empowerment and Resilience

Anaïde Nahikian — Thu, 02 Aug 2012 21:11:13 +0000

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IHL in Action

In recent years, events in countries such as Iran, Egypt, and Syria have sparked a flood of research and analysis of social media as a transformative vehicle for “citizen journalism” (for example, see “Social Media, Political Change, and Human Rights,” published earlier this year in the Boston College International and Comparative Law Review; “Opening Closed Regimes: What Was the Role of Social Media During the Arab Spring?”, published in 2011 by the Project on Information Technology and Political Islam; and “Small Change: Why the Revolution Will Not Be Tweeted,” authored by Malcolm Gladwell and published in 2010 by The New Yorker). However, the potential influence of “citizen journalism” and social media platforms extends beyond political change to humanitarian assistance in disasters and complex emergencies. According to a recent study authored by Mark E. Keim and Eric Noji, the “peer-to-peer” nature of social media engagement can empower affected populations in crises, inform humanitarian agencies of real-time needs, and increase long-term community resilience.

Moreover, the use of information technologies — particularly in the domain of humanitarian assistance for networking, communication, and crisis mapping — has increased greatly in the past few years, generating dynamic exchanges on critical global issues that have significant potential for policy impact.

However, social media becomes even more useful when, as a recent article in IRIN News states, this technology is “used in conjunction with mainstream media (…) to enrich what mainstream media or aid organizations have”. Indeed, “citizen journalists” in the midst of crises are able to contribute real-time testimonies, as do mainstream news sources, but can sometimes also provide beneficial background and details to which mainstream news organizations may not have access. Additionally, through social media, aid agencies are able to engage in a two-way dialogue with communities affected by emergencies, better enabling humanitarian actors to assess the immediate needs of beneficiaries.

The study also indicates that the “peer-to-peer” connections that social media facilitates can empower victims of humanitarian crises to cope more effectively with their circumstances. This empowerment can improve individual and community resilience by offering a sense of control, dignity, and individual as well as community responsibility. Technological innovations, such as adapting social media platforms in local languages to mobile phones through SMS functionality, is also a tremendous asset in crises, particularly when internet access is unreliable.

But despite these advantages, numerous challenges continue to hamper social media use in humanitarian assistance. First, social media remains less widespread and accessible than mainstream media channels. Second, as the study indicates, there is a tendency of public officials to perceive “peer-to-peer” communication networks as “backchannels” with the potential to spread misinformation. Third, social media lacks the regulations present in most mainstream media. The absence of mechanisms to monitor or regulate privacy rights violations is particularly significant, given the personal dimension of events, stories, and circumstances in humanitarian crises. Finally, lost phone signals and sporadic Internet access in complex environments presents an ongoing technical challenge.

These challenges suggest that humanitarian professionals and beneficiaries would benefit from more effectively integrating social media into existing crisis response mechanisms. Additionally, further research into this area could lead to a greater understanding of the long-term impact of social media on community resilience, as well as to a more robust critical analysis of social media’s influence on humanitarian action. While social media has the potential to transform humanitarian assistance in some of the most complex humanitarian environments, the above assessment indicates that the humanitarian community may benefit from a more comprehensive examination of the ways in which social media’s power can be harnessed.

For more on HPCR's recent work on social media and humanitarian protection, click below:
Social Media as a Tool for Humanitarian Protection
ICT and Protection: Can Information and Communication Technology Enhance Humanitarian Action?
Social Media and Humanitarian Protection: Baseline Survey Results by Rob Grace

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social media

Humanitarian Action

Briefing Note: UN Integration & Humanitarian Coordination: Policy Considerations towards Protection of the Humanitarian Space

Vera Sistenich — Fri, 06 Jul 2012 20:47:54 +0000

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IHL in Action

Summary of UN Integration & Humanitarian Coordination
Founded in 1945, the United Nations (UN) emerged from the Cold War in the early 1990s as the key organization for preventing and resolving international conflicts. It assumed this role through wide engagement in conflict-affected countries characterized by humanitarian crises and large-scale violence against civilians [1]. Member States began to seek more effective response mechanisms and by the late 1980s, the UN Security Council was increasingly authorizing multi-dimensional peace-keeping missions combining political, military and civilian actions to support transitions from war to peace or independence [1]. Soon, however, tensions emerged between the different UN actors, for example around the prioritization of short-term political and peace-keeping objectives over the longer-term agenda of development [2]. In 1997, the need to "act coherently" was recognized by Secretary-General Kofi Annan who put out a call for "unity of purpose" through initiating a program for UN reform centered around "integration" between its humanitarian, peace-keeping and political structures [3]. The main purpose of integration is to "maximize the individual and collective impact of the UN's response, concentrating on those activities required to consolidate peace" [4]. This purpose is grounded in the belief that UN integration can yield significant benefits for humanitarian operations, must respect humanitarian principles, and facilitate effective humanitarian coordination [4].

Often confused with UN integration, humanitarian coordination is evolutionarily distinct and broader in scope, involving non-UN as well as UN humanitarian entities. Coordination between these can be defined as a "systematic utilization of policy instruments to deliver humanitarian assistance in a cohesive and effective manner" [5]. In the Humanitarian Response Review commissioned in 2005 by the UN Emergency Relief Coordinator (ERC) and Under-Secretary General for Humanitarian Affairs, three networks were identified to which most humanitarian organizations belong [6]. First, there is the network of UN agencies, in which coordination functions are adopted by the ERC, the Inter-Agency Standing Committee (IASC), the Office for Coordination of Humanitarian Affairs (OCHA) and, at the individual country level, the Humanitarian Coordinators (HC). The second network encompasses the constituent organizations of the Red Cross/Red Crescent Movement which are the International Committee of the Red Cross (ICRC), International Federation of Red Cross and Red Crescent Societies (IFRC), and the National Red Cross and Red Crescent Societies; their mechanisms of interaction are governed as stipulated in the Seville Agreement [7]. The third network includes non-governmental organizations (NGOs) linked through three consortia: InterAction, International Council of Voluntary Agencies (ICVA) and the Steering Committee for Humanitarian Response (SCHR) [8].

In complex emergencies, humanitarian needs exceed the capacity of a single agency. Efficiency in terms of cost, labor and resources is a significant impetus behind efforts towards humanitarian coordination.8 This is further motivated by a recognition of the importance of coherence, efficacy, quality, responsiveness and accountability towards beneficiaries. After critical self-reflection of its role in Darfur in 2004, the UN initiated the Humanitarian Reform process which aimed to remedy operational gaps and improve the timeliness, effectiveness and predictability of aid delivery. It sought to achieve these goals through the "Four Pillars" of reform: (1) establishment of the Cluster Approach to nine key agrees of humanitarian assistance; (2) strengthening the Humanitarian Coordinators system; (3) ensuring adequate, flexible and predictable humanitarian financing through the creation of the Central Emergency Relief Fund (CERF); and (4) building partnerships between UN and non-UN humanitarian actors [9]. While the ICRC and a few NGOs chose to remain outside these coordinating mechanisms and limit their participation to observational in the clusters and other coordination fora, most NGOs now participate actively, and many work closely with UN agencies in the field, including as implementation partners [10]. Through the current coordination system, UN and non-UN actors engage in joint planning and prioritization of humanitarian response strategies and access shared funding pools. In addition, the HC represents and publically advocates for the entire humanitarian community, including non-UN actors; consequently, the perception of the HC may impact that of an entire humanitarian effort [10].

The Humanitarian Space Threatened
The humanitarian principles of humanity, neutrality, impartiality and operational independence are central to the provision of humanitarian response [11]. Humanitarian assistance should be provided solely on the basis of need and be autonomous from political, religious, economic or military objectives. Indeed, it has been argued that the very emergence of humanitarian principles was to serve to depoliticize relief-orientated activities, to inoculate humanitarianism from partisanship, and to create a "humanitarian space" free of such complexities that could hinder the relief of human suffering during natural or man-made disasters [12]. Whether a humanitarian organization sees itself as Dunantist (politically passive) or Wilsonian (politically opinionated and ideologically transformative) [12], it should still abide by the humanitarian principles with regards to its provision of aid to those in need.11 Politics and organizational agendas should be confined to, if they arise, a space which does not interfere with the relief of human suffering.

The term humanitarian space came into wide usage in the early 1990s and is attributed to the former president of Médecins Sans Frontières, Rony Brauman, who described an “espace humanitaire” in which humanitarians should be “free to evaluate needs, free to monitor delivery and use of assistance, free to have dialogue with the people” [13]. Today, the concept of the humanitarian space means different things to different people and has been given four broadly accepted definitions, variously as (1) agency space; (2) affected community space; (3) international humanitarian law; and (4) a complex political, military and legal arena [13].  The recent Humanitarian Policy Group report, Humanitarian Space: a review of trends and issues, insightfully explores the historical and political reasons for the perceived shrinking of the humanitarian space as well as the implications of the current international humanitarian system for it [13].  UN integration and humanitarian coordination is but a part, albeit a crucial one, of this interesting and complex situation.

The concern is that the process of UN integration (which brings the humanitarian UN closer to its political and peace-keeping mission) and on-going humanitarian reform (which brings UN and non-UN humanitarian organizations ever closer together) together create both an internal pressure within the UN for politicization and therefore, by association, a similar external pressure on non-UN agencies. This has called into question the very possibility of the existence of a meaningful humanitarian space in modern-day, large-scale humanitarian responses. Many NGOs are opposed to UN integration on principle, arguing that it blurs the distinction between humanitarian, military and political action, subordinates humanitarian priorities to political prerogatives, and places humanitarian action at significant risk. Meanwhile, many in the UN political and peace-keeping community highlight the positive contribution of integration to the progress made in policy development over recent years and stress the need for even greater coherence [1].

The areas of humanitarian activity influenced by the status of the humanitarian space has been characterized into five dimensions by the UN Integration Steering Group (ISG): (1) security of humanitarian workers; (2) access; (3) engagement with non-state armed actors; (4) perceptions of humanitarian workers; and (5) humanitarian advocacy [1]. While distinct, these dimensions are closely inter-related so that impact on one affects the others. The effect of integration and coordination on them may be different for UN, NGOs and other non-UN humanitarian actors, and arguably more pronounced for the UN since the non-UN agencies, though associated, are not part of the UN per se. Impact is also related to the context of the political and conflict environment of the humanitarian mission [1 ]. Despite these differences, the central threats to each dimension of the humanitarian space posed by UN integration and humanitarian coordination can be identified, and policy considerations towards mitigating them explored.

Policy Considerations towards Protection of the Humanitarian Space in Light of UN Coordination and Humanitarian Coordination

Security of Humanitarian Workers
Attacks on humanitarian workers have tripled over the past decade [14]. In 2010, there were 126 incidents involving NGOs reported, including the killing of 28 staff [1]. Between 2008 to 2010, 60% of the total number of workers affected by violence occurred in Afghanistan, Somalia and the Democratic Republic of Congo (DRC), making these the most threatening places in the world for humanitarian missions [14]. Evidence suggests proximate causes for these attacks to include the blurring of the distinction between humanitarian assistance, counter-insurgency and counter-terrorism strategies [15]. Furthermore, non-UN humanitarian actors have in some instances also been reluctant to share any security-related information with the UN in case it was passed on to local or international political entities, potentially leading to accusations of espionage [1].

These serious security issues necessitate a review of the current guidelines on UN operational security management with the goal of ensuring that the consequences of integration are specifically considered during the formation of security risk analysis and mitigation strategies. The risk of UN association must be considered for both UN and non-UN actors. Confidentiality protocols should also be developed between OCHA, the humanitarian UN, the political UN and the peace-keeping UN components. Attempts to address concerns related to information-sharing could involve permitting the military/political staff to participate in some parts of the protection cluster meetings, while restricting other parts to humanitarian actors exclusively [10].

Humanitarian Access
As defined by UN General Assembly Resolution 46/182, humanitarian access has two key components: the ability of humanitarian actors to reach populations in need of assistance, and the ability of affected populations to access assistance and basic needs [16]. The role of the HC and OCHA in facilitating access negotiations with opposition groups, armed ones in particular as is indeed their mandate, is increasingly questioned by the NGO community because they are not seen as neutral brokers [10]. There has also been criticism of the UN's operational security management system for emphasizing 'protective' rather than 'enabling' approaches, resulting in tighter restrictions on staff movement and 'bunkerization' of office and residential buildings [1]. Some NGOs do not travel in convoys using UN military escort in an attempt to increase access. Direct interaction between the humanitarian decision makers and those in need of assistance is becoming increasingly bureaucratic and logistically cumbersome.

One suggestion for protecting this dimension of the humanitarian space is for OCHA to provide the NGO community with the analysis made by the political/peace-keeping mission of the power relations of opposition groups, and to openly acknowledge when the UN is perceived as highly politicized. This should be done alongside the development of mechanisms to allow and facilitate conflict and access negotiations between non-UN actors and opposition groups. In line with existing guidelines on the use of military escorts, a comprehensive assessment including all relevant stakeholders should be undertaken before the use of UN military escorts to decide if they are really necessary, and to balance the associated risks and benefits regarding security and access.

Engagement with Non-State Armed Actors
Within the UN system, the Special Representative of the Secretary-General (or deputy, DSRSG) is the most senior UN representative within a country, has authority over all UN activities there, and is seen as a powerful political figure; the Resident Coordinator (RC) is responsible for development activities; and the HC is responsible for the planning and delivery of the humanitarian program [17]. The process of UN integration has brought into existence the 'dual-hatted' position of RC/HC, and the 'triple-hatted' position of DSRSG/RC/HC [17]. This has exacerbated a confusion within the humanitarian community, including UN actors themselves, about the existence of a 'no contact' policy within the UN regarding engagement with non-state armed actors. While no such policy actually exists, there is confusion that it is implicit in the perceived politicization of an integrated UN structure [1]. Indeed, examples have been found where UN mission leaders used their authority in the integrated UN presence to limit humanitarian engagement with non-state armed actors when this was deemed detrimental to political objectives [1].

There needs to be clarification with the entire humanitarian community on the issue that the UN does not have a 'no contact' policy. Senior UN leadership at headquarters and in the field need to be encouraged and trained to uphold the ability of UN and NGO actors to engage with all parties in a conflict for humanitarian purposes. Where political tensions are high, particularly in areas of armed conflict, multi-hatted UN leadership roles should be avoided. It is worth noting here that in 1999, the ICRC negotiated for and secured immunity against giving testimony before the International Criminal Court (ICC) and other international criminal tribunals; it has a clear and long-established history of not disclosing what it discovers during its work, including remaining silent over evidence of genocide and other crimes again humanity [18]. Although controversial, this has contributed to the ICRC's unparalleled reputation of neutrality and particular effectiveness in negotiations with armed groups. Other humanitarian agencies may consider pursuing a similar strategy, after careful considerations of its implications.

Perceptions of Humanitarian Workers
It is difficult to know how humanitarian workers and their actions are perceived by beneficiaries, local leaders and opposition groups since studies in this field are sorely lacking. Just as little is known about how humanitarian workers can control their image. What is known, however, is that being perceived as part of the UN's political or peace-keeping agenda was of particular concern to UN and non-UN actors in Afghanistan, DRC and Somalia because UN missions had mixed records there and were deemed partisan to certain groups active in the conflicts [1]. Studies and regular surveillance mechanisms need to be developed to reveal how local communities and, if feasible, non-state armed actors perceive humanitarian workers and to what extent these are associated with UN integration and humanitarian coordination. Findings on what, in their eyes, makes humanitarians legitimate targets would be highly valuable in informing future strategies in the protection of this, and all other dimensions, of the humanitarian space.

Humanitarian Advocacy
Advocacy on behalf of populations in need is a key component in any humanitarian response, be it through the media, public statements or quiet diplomacy [1]. The extent to which this can occur is subject to a range of limitations, including the capacity, ability and willingness to undertake such efforts, in particular on the part of the HC [1]. Existing integrative policy does not imply that decision-making will necessarily support humanitarian advocacy; indeed, there have been incidences where the UN mission leadership has refrained from speaking out on humanitarian issues when these were of a grave nature [18, 19]. Coordinated advocacy by the humanitarian community is also often weak since the diversity of actors, mandates and priorities makes consensus on public messages difficult. Onus for the active development and implementation of humanitarian advocacy strategies needs to be placed on the leaders of all humanitarian agencies in a mission, and within the UN, on the HC. In the case of multi-hatted UN leadership, an internal mechanism to ensure that humanitarian advocacy is consistently upheld as an indispensible priority needs to be implemented.

References
1. Humanitarian Policy Group (HPG) & Stimson Center. UN Integration and Humanitarian Space. An Independent Study Commissioned by the UN Integration Steering Group; 2011. http://www.stimson.org/images/uploads/research-pdfs/Integration_final.pdf. Accessed 5 July, 2012.
2. Minear L. Introduction to Case Studies in Humanitarian Action and Peace-keeping Operations: Debriefing and Lessons. Azimi N (ed.). London: Kluwer Lay International; 1997.
3. United Nations. Renewing the United Nations: A Programme for Reform. Report of the Secretary General. A/51/950, 14 July, 1997.
4. United Nations. Decisions of the Secretary-General –25 June meeting of the Policy Committee. Decision No. 24/2008, 26 June, 2008.
5. Minear L, Chelliah UBP, Crisp J et al. United Nations Coordination of the International Humanitarian Response to the Gulf Crisis 1990-1992. Watson Institute for International Studies; 1992.
6. United Nations. Humanitarian Response Review. Commission by the United Nations Emergency Relief Coordinator and Under-Secretary General for Humanitarian Affairs; August 2005. http://www.unicef.org/emerg/files/ocha_hrr.pdf. Accessed 5 July, 2012.
7. The Seville Agreement: http://www.redcross.int/en/history/fullsevilleagreement.asp. Accessed 5 July, 2012.
8. Advanced Training Program on Humanitarian Action (ATHA). Humanitarian Coordination: An Overview. ATHA Thematic Brief Series; January 2008. http://www.atha.se/sites/atha.se/resources/public-files/thematic-briefs/.... Accessed 5 July, 2012.
9. UN Office for Coordination of Humanitarian Affairs (OCHA). The Four Pillars of Humanitarian Reform. http://www.humanitarianinfo.org/srilanka/docs/hum_re/The_humanitarian_re.... Accessed 5 July, 2012.
10. Glad M. A Partnership at Risk? The UN-NGO Relationship in Light of UN Integration. Norwegian Refugee Council; 2012. http://www.nrc.no/arch/_img/9608308.pdf. Accessed 5 July, 2012.
11. UN Office for Coordination of Humanitarian Affairs (OCHA). OCHA on Message: Humanitarian Principles. April 2010. http://ochanet.unocha.org/p/Documents/OOM_HumPrinciple_English.pdf. Accessed 5 July, 2012.
12. Barnett M. Humanitarianism Transformed. Perspectives on Politics. 2005;3(4):723-740.
13. Humanitarian Policy Group. Humanitarian Space: a review of trends and issues. Overseas Development Institute; April 2012. http://www.odi.org.uk/resources/docs/7643.pdf. Accessed 5 July, 2012.
14. Humanitarian Outcomes. The Aid Worker Security Database; 2011. https://aidworkersecurity.org/. Accessed 5 July, 2012.
15. Fast L. Mind the Gap: Documenting and Explaining Violence Against Aid Workers. European Journal of International Relations. 2010;16(3):365-389.
16. United Nations. Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations. General Assembly Resolution 182. A/RES/46/182, 19 December, 1991.
17. United Nations. The Role of the Special Representatives of the Secretary-General and Resident Coordinators. Joint Inspection Unit; 2009.
18. International Committee of the Red Cross. ICRC and ICC: two separate but complementary approaches for ensuring respect for international humanitarian law. Resource Center, March 2009.http://www.icrc.org/eng/resources/documents/interview/international-criminal-court-interview-101008.htm.Accessed 5 July, 2012.
19. Bradhury M. State-building, Counterterrorism, and Licensing Humanitarianism in Somalia. Feinstein International Center Briefing Paper; 2010.

Blog Tags:

humanitarian policy

integration

coordination

Detention by armed groups: overcoming challenges to humanitarian action

hpcr — Mon, 25 Jun 2012 16:26:22 +0000

Blog Type:

IHL in Action

Blog Tags:

humanitarian

armed groups

Guest Writer:

David Tuck

Engaging with Non-State Armed Groups: the Geneva Call "Deed of Commitment"

hpcr — Mon, 25 Jun 2012 16:18:31 +0000

Blog Type:

IHL in Action

Blog Tags:

humanitarian

armed groups

Guest Writer:

Jonathan Somer

Reasoning with Rebels: the Nitty-Gritty of Engaging Armed Groups

hpcr — Tue, 19 Jun 2012 19:19:51 +0000

Blog Type:

IHL in Action

Blog Tags:

peacebuilding

armed groups

Humanitarian Action

Guest Writer:

Claudia Hofmann

Linking Humanitarian Action and Peacebuilding

hpcr — Tue, 12 Jun 2012 13:25:49 +0000

Blog Type:

IHL in Action

Blog Tags:

peacebuilding

Humanitarian Action

Guest Writer:

Masayo Kondo Rossier

Social Media and Humanitarian Protection: Baseline Survey Results

Rob Grace — Tue, 29 May 2012 13:55:56 +0000

Blog Type:

IHL in Action

From April 11 to May 8, 2012, the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University conducted a baseline survey on the humanitarian community’s use of social media. HPCR presented the survey results during a Live Web Seminar on May 10, 2012. This blog post examines some key findings of the survey in more detail.

Over six hundred respondents completed the survey. And though one can garner many valuable insights from the results, one must approach the data with a certain degree of caution. The survey was not a scientific poll but instead details information gathered from a self-selected subset of the humanitarian community. Individuals already interested in social media were likely to be more inclined to take the survey. And — since HPCR circulated the survey via email and on social media sites, such as LinkedIn, Facebook, and Twitter — tech-savvy humanitarians were more likely to find out about the survey. For these reasons, one cannot interpret the survey results as representative of the humanitarian community as a whole. Rather, the data provides a snapshot of a certain self-selected group of humanitarian professionals. But even with these caveats, the results highlight several areas worthy of further attention.

Who Are the Survey Respondents?

As the below graph indicates, a large plurality of the survey respondents were individuals directly involved in humanitarian operations.

And the survey did not capture merely the opinions of young professionals — as one might presume given the perception of social media as youth driven technology. Rather, the survey largely attracted seasoned humanitarian professionals, as demonstrated by the below graph.

The graph does show that a significant proportion of respondents had five or less years of experience in their profession, and the graph dips in the “20 – 30 years” and “More than 30 years” ranges. But the high percentage of respondents in the “5 – 10 years” and “10 – 20 years” ranges seems to indicate a strong interest in social media among mid-career humanitarian professionals. Indeed, the data shows that a majority of the survey respondents — 58 % — had 5 years or more of experience in their professional fields.

Additionally, the respondent pool represents a wide geographic scope, as shown by the below pie chart, which details the survey respondents’ regions of operations.

One somewhat surprising result indicated by this chart is the high percentage of respondents working in Africa and the Asia/Pacific region. Africa represents the largest respondent group, and Asia/Pacific ties the United States and Canada for second place. Though, as noted above, one should approach this data cautiously given the aforementioned caveats, these results could be indicative of the bourgeoning interest and growing importance of social media in these regions.

How Are Respondents Using Social Media?

The two graphs below address how survey respondents are using social media. The following graph shows respondent answers to the question: “For what purposes do you use social media related to your profession?”

These results challenge the conventional notion that social media is primarily used for advocacy and self-promotion. Indeed, these categories — “Promotion of my organization,” “Advocacy and marketing,” and “Visibility of my on-line profile” — rank at the bottom of the list. The top five most popular social media uses — “News and information,” “Exchange of information with peers,” “Professional networking,” “Research,” and “Educational purposes” — all involve exchanging information and building professional networks, which suggests that humanitarian professionals are interested in using social media platforms as forums for building a community of practice.

The following graph — which shows respondent answers to the question, “In this context, on what types of topics do you engage?” — confirms this notion.

The graph shows the wide breadth of topics that humanitarian professionals are discussing on social media platforms. In particular, the graph highlights the prominence of social media’s normative potential, since the two most popular categories — “Human rights promotion” and “Promoting respect for international humanitarian law” — are normative in nature. These data points suggest that humanitarian professionals are engaged in harnessing the normative power of social media and that social media is likely to play a key role in the future development of legal and professional norms.

Perceptions of the Future of Social Media

And what do the survey respondents believe about the future of social media? The following graph answers this question by displaying the percentages — broken down by age group — of respondents who answered that social media “will increase and will have a growing impact on humanitarian action.”

Large majorities, in every age group surpassing 70%, believe that social media’s relevance to humanitarian action will increase. Though there are slight variations across age groups, this data demonstrates that interest in social media is not confined to younger professionals but rather spans multiple generations.

Perceptions of Employers’ Social Media Proficiency

The final graph, viewed alongside the graphs above, suggests a key challenge for humanitarian organizations. The below bar graph represents respondents who answered, “My employer has a social media strategy/plan.” The overlapping line graphs detail respondent perceptions of whether their organizations are “lagging, unaware, or opposed to social media,” “on par in the use of social media,” or “a leader in the use of social media.”

This graph suggests that — despite the importance of social media to building a community of practice, the widespread the use of social media for normative conversations, and the perception that social media’s impact on humanitarian operations will continue to increase — humanitarian professionals do not perceive their organizations to be adequately engaging with social media. In every region, less than 35% believe that their organizations have a social media strategy. And in every region, even smaller percentages identify their organizations as social media leaders. An apparent disconnect exists between the growing importance of social media to humanitarian action and the robustness of humanitarian organizations’ social media engagement. Though, as noted above, one should view this data with caution given the self-selective nature of the survey, the starkness of this disconnect suggests that this topic is worthy of further research, analysis, and discussion.

Blog Tags:

social media

The Promise of Social Media for Humanitarian Action?

hpcr — Thu, 10 May 2012 13:34:48 +0000

Blog Type:

IHL in Action

[Editor's Note: In its efforts to enrich professional dialogue on contemporary challenges of humanitarian law and policy, the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University invites experts in international humanitarian law, humanitarian action, and associated fields to contribute their insights to relevant discussions. HPCR is pleased to welcome the contribution below from Mr. Jason Cone, Communications Director at Doctors Without Borders/Médecins Sans Frontières (MSF). He will be one of the expert panelists at the 10 May 2012 Live Web Seminar on "Social Media as a Tool for Humanitarian Protection".]

Most international humanitarian aid agencies use the latest techniques in brand and market research – prompted-awareness surveys, name-recognition studies -- to neatly shape and refine their perceptions in societies where they are raising the bulk of their human and financial resources.

A tremendous amount of time, energy, and resources is devoted to reporting on activities in the field for the benefit of private and institutional donors far from the people living in the communities we are trying to assist. All of this is done in the pursuit of accountability, but very little information actually reaches the beneficiaries of our aid programs.

It’s not surprising that aid organizations – MSF included – have capitalized on the emergence of social media platforms like Facebook and Twitter to expand their capabilities to report on their operations, mobilize awareness campaigns, raise funds, and even apply pressure on governments. With fewer foreign bureaus, it is often much easier to send images from the field to expanding bases of followers on social networks than convince media outlets with dwindling resources to report on the health crisis in the Central African Republic.

Understanding How Humanitarian Aid is Perceived
Far less understood or exploited has been the uncertain promise of social media to facilitate communication with populations affected by humanitarian crises or improve the effectiveness of aid itself.
In absence of effective communication, whatever the means, people are drawing their own conclusions about humanitarian aid providers. Recently, MSF co-published In the Eyes of Others: How People in Crises Perceive Humanitarian Aid with Humanitarian Outcomes and NYU's Center on International Cooperation. The book is a result of MSF’s attempt to better understand how our work and principles of neutrality, impartiality, and independence -- as well as the notions of transparency and credibility -- are perceived by those who receive our emergency medical care.

The study – part of operational research aimed at improving our field practices – exposed important gaps in understanding among geographically and culturally diverse communities, ranging from Monrovia, Liberia to Bishkek, Kyrgyzstan. While most people recognize MSF’s medical nature, the project revealed that we have a ways to go to facilitate two-way communication with our beneficiaries.

To that end, perception is increasingly being integrated from the start of each project and the study has provoked changes in thinking in operations, medical, human resources, and communications departments. It remains to be seen whether social media can be a relevant tool in helping our field teams to close these gaps in understanding. What is clear, however, is that the issue of perception can have important implications for the security and effectiveness of our aid programs.

Social Media as a Means -- Not an Ends
One of the first struggles of figuring out how to leverage social media to improve communication with the populations receiving humanitarian aid is the basic step of knowing what platform or tool to use. It can be difficult to gauge the penetration of media – social or otherwise – in the regions where the greatest humanitarian needs exist today.

These gaps in information also pose a challenge in terms of making decisions about how much to invest in different forms of communication – whether new or old – to support programs on the ground. Practically speaking, time and resources are precious commodities for operations managers in the field and at headquarters who are busy mobilizing aid, managing hospitals or clinics, and analyzing evolving security situations.

Methodologies and techniques have been developed by groups such as Internews to assess information needs of target populations like Somali refugees in Dadaab, Kenya, and the best way to deliver messages to these communities. The Internews-sponsored project infoasaid provides some simple diagnostic tools to assess information needs and has done some impressive assessments of many countries in terms of mobile phone and radio penetration and mapping of media outlets.

MSF is still far from incorporating access to information within the scope of our emergency assessments. It is clear this is an important and underappreciated aspect of meeting the needs of disaster-affected populations on top of the more tangible forms of assistance like medical care, water, food, and shelter. Understanding how people access information, though, is a critical precursor to defining any kind of effective communications strategy targeting the communities intended to benefit from our assistance.

Assessments like the one done by Internews in Dadaab found that they can pinpoint critical gaps in information that make a difference in aid effectiveness. Most new arrivals to the camp lacked even basic knowledge of how and where to register for aid, which led to delays in receiving assistance that had a major impact on the health of this already weakened population fleeing war. Radio was identified as the most important means of communications with social media barely registering in the Dadaab assessment.

Aid workers need to be platform agnostic and actively assess the most relevant means of reaching and communicating with the populations we are aiming to assist. The end goal should be effective assistance and not simply deploying the latest technology or emerging social media platform.

Open Not Always the Answer
The open nature of social media is not always an asset when operating in dangerous and politically charged contexts like Bahrain, Somalia, and Syria. Communication technologies -- more so than open social media networks per say -- have been utilized in increasingly operationally relevant ways to facilitate humanitarian aid.

Tools like Blackberry Messenger and Skype have played important roles in facilitating medical referral networks and supporting telemedicine efforts. Aid workers have been, albeit to a limited degree, savvy to exploit these tools to network and identify allies just as citizen journalists and activists have used other tools like YouTube and Twitter to exponentially increase their impact.

Setting the Bar – Improving Aid Effectiveness for People in Crisis
Much has been made of the power of open-source technologies and platforms to help humanitarian aid workers emerge from their technology slumber. These assumptions have largely been based on the emergence of volunteer and technical communities (V&TCs) during the Haiti earthquake response and with some other notable and important initiatives like the community-driven mapping effort in the Kibera slum in Nairobi, Kenya.

In many respects, post-earthquake Haiti is more of an outlier than the norm for a humanitarian emergency. The disaster in Haiti was almost unprecedented – a massive earthquake in one of the poorest and most densely populated urban settings – where the challenge was less about identifying needs than scaling up aid. Like other first-responders in Port-au-Prince, MSF teams needed to only walk several meters outside the collapsed remains of one of our trauma hospitals to find patients requiring emergency medical attention.

V&TCs offer a robust and committed group to support aid efforts. There were some important lifesaving collaborations between these groups and search and rescue teams. Geospatial mapping has also been leveraged by some MSF teams in the field as well. But an overflow of information and data can be as paralyzing as the absence of it when it comes to mobilizing an aid response. Legions of “crisis mappers” won’t be able to replace the need for more aid workers – or ideally national authorities -- operating on the ground to verify needs and formulate responses.

Right now most aid agencies – MSF included -- lack the human resources to build, monitor and analyze the kinds of data sets that can be produced from the convergence of social media and geospatial mapping programs. Paul Conneally of the International Federation of the Red Cross and Red Crescent Societies has highlighted this critical gap.

But it is just one gap. Improved data collection and analysis – whether fueled by social media or not -- is far from the only missing link in a better international humanitarian aid system. A recent study published in the American Journal of Tropical Medicine & Hygiene touted the ability of twitter and other social media to detect the cholera outbreak before conventional epidemiological surveillance methods.

Ultimately, however, detection and information awareness was not the most significant problem during the cholera outbreak. Haitians received millions of text messages about the dangers of cholera but had little access to clean drinking water, sanitation services, oral rehydration points, or treatment centers for weeks after the start of the epidemic. More than a month after the outbreak had been declared in Haiti, it was the inability of the aid system to effectively mobilize the most fundamental and well-established cholera prevention and treatment measures and not the dearth of information or analysis that posed the greatest challenge.

At the end of the day, humanitarian aid workers will need to be on the ground assessing needs, dealing face-to-face with armed actors and community leaders, making hard choices about how much and what kinds of aid can be delivered in life-or-death situations.

In conflict zones and politically charged contexts, the same challenges of negotiating access, assessing security risks, and navigating difficult compromises to the fundamental principles of independent, impartial, and neutral aid will remain, regardless of the evolution of social media and technology.

Even the practice of simply “listening” to conversations -- let alone engaging in those conversations -- on sites like Twitter to glean an understanding of the perception of aid organizations is incredibly time intensive as MSF has learned through various Arab Spring revolutions.

While aid agencies may be slow to capitalize on the perceived potential of social media and emerging technology, this may not be as dire a state of affairs as some social media evangelists would profess it to be. We should strive to use all the tools at our disposal to provide better assistance to victims of wars, epidemics, and other crises.

Ultimately, though, the usefulness of social media tools to humanitarian action should be judged on the basis of their impact in improving the quality, relevance, and effectiveness of aid – not the speed at which the tools themselves are adopted by the humanitarian community.

Blog Tags:

social media

Guest Writer:

Jason Cone @jtcone1977

No More Babies Born with HIV by 2015

hpcr — Wed, 09 May 2012 17:10:35 +0000

Blog Type:

IHL in Action

Blog Tags:

social media

Guest Writer:

Claudia Gonzalez @claudiagonzalez

Who will tell Scisa’s story?

hpcr — Mon, 07 May 2012 17:04:00 +0000

Blog Type:

IHL in Action

Blog Tags:

social media

Guest Writer:

Melissa Fleming @melissarfleming

A brief history of MSF’s relation to human rights and a presentation of the current challenges

hpcr — Thu, 26 Apr 2012 13:24:08 +0000

Blog Type:

IHL in Action

Médecins sans Frontières is in an interesting situation when its comes to discussing the intersection of Human Rights Law, International humanitarian law and humanitarian action, as it has successively adopted a large number of different approaches. In its early years, MSF defined itself as an organisation whose neutrality was absolute, far from the present organisation that cultivates both assistance and speaking out on an equal footing. Its first charter stipulated that “its members would refrain from any interference in States’s internal affairs”. As a co-founder of the organisation put it in 1971, “doctors don’t go to witness, they go to treat”.

It did not take very long for it to change its position, but I would like to stress here the fact that there is no legitimate choice applicable to all circumstances. Decisions made are the result of political choices, impacted by the ideological confrontations faced, and by the way it sees its role within the international community.

Starting at the end of the 1970s, MSF moved to adopting a strong anti-totalitarian stance. This move was based on its analysis that communist totalitarianism was the source of the contemporary genocidal process. In its work in refugee camps– which grew from three million to eleven million people between the late 1970s and early 1980s – MSF observed that 90% of them were fleeing from communist regimes. At the same time, the organisation spoke out in an attempt to extract itself from situations where it believed humanitarian aid was “having a perverse effect” to the point of becoming “complicit in criminal policies” – as in Ethiopia in 1985. In 1988, a Board member said: “As a ‘human rights practitioner’, MSF is thinking of participating in the drafting of a new universal declaration.” The organisation chose to act in times of war, as a human rights sentinel.

The years that followed brought a succession of great hopes and major disillusions. Following the fall of the Berlin wall and the dismantlement of the Soviet empire, MSF welcomed the growing involvement of the UN and western nations in conflicts, in order to “guarantee genuine access to victims and an end to human rights violations. It quickly went on to denouncing the humanitarian alibi: state humanitarianism as an alternative to war against criminal regimes.

An over-simplified analysis would be that MSF, between 1990 and 2000, gradually became disillusioned in the face of its confrontations with military-humanitarian interventions, starting in 1993 when Rony Brauman wrote: “In Somalia, people were killed for the first time under the banner of humanitarism”. The organisation became more and more sceptical vis-à-vis its “speaking out” and its consequences: by publicly exposing war crimes and the misappropriation or obstruction of humanitarian assistance, MSF may in fact have been encouraging the use of international military as legal measures against the perpetrators. It went on to clearly distinguish its role as a Humanitarian organisation from that of the defence of human rights. Over the last few years, MSF has been more hesitant than ever to speak out about the emergencies in which it intervenes.

So what now? The experience of MSF in Darfur shows how liberal interventionism can be both a liability (getting involved in calls for intervention) and an opportunity (UN / US pressures on the government of Sudan resulting in increased access for NGOs). Is this maybe a way for MSF to act vis-à-vis human rights, maintaining a respectful distance, while trying to seize the opportunity for ad hoc partnerships?

Blog Tags:

International Human Rights

Guest Writer:

Michaël Neuman

International Human Rights and Humanitarian Action

hpcr — Wed, 25 Apr 2012 19:01:31 +0000

Blog Type:

IHL in Action

The question of the degree to which humanitarian actors ought to rely on international human rights law (IHRL), in addition to IHL, is by no means new. It rose to prominence in the humanitarian NGO community in the mid 1990s, and numerous conferences and workshops explored the practical implications for relief work of relying on both human rights and humanitarian principles. The ICRC convened consultations on this issue from 1998 onwards which led to a series of publications and guidelines, including most recently, in 2009, the publication: Professional standards for protection work carried out by humanitarian and human rights actors in armed conflict and other situations of violence.

The fact that the issue continues to present itself, however, and is perceived as “new” or problematic, shows that there is a continuing need for reflection. But in doing so, we should at least proceed on the basis of where previous discussions concluded, or at a minimum be mindful of those conclusions. One key conclusion that has emerged is that the issue is not whether humanitarian actors choose to rely on both IHRL and IHL in their work. Rather, the key issue is whether they understand their work as having a protection component. If they do so, then it is clear that they cannot easily limit their frame of reference to one or other body of law; both will be relevant.

This understanding is explicit in the ICRC definition of protection as encompassing

“…all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law, and refugee law. Human rights and humanitarian organizations must conduct these activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender).”

In other words, an organisation engaged in humanitarian work may eschew a protection aspect to its work (although the wisdom and viability of such a decision will likely be challenged in particular contexts), but accepting that relief work has a protection aspect necessarily entails reference to both IHL and IHRL for standards to guide that work.

The fact that the issue is still presented as if it were one of choosing one or other body of law as a frame of reference, is unfortunate. It is grounded in several misunderstandings, of IHRL in particular, among the humanitarian community. Let us look at three:

1. Confusing tactics with principles

One source of continuing confusion is that many people tend to conflate a particular body of law, IHRL, with particular tactics used to seek its enforcement – namely the very public ‘name and shame’ technique of classic human rights advocacy, with its focus on identifying perpetrators and demanding accountability. Thus, it is too often and too readily assumed that using IHRL as a frame of reference requires public advocacy and, for example, a preference for justice and accountability as opposed to making deals with warlords. This is wrong. Public advocacy is only one technique, albeit a very visible one, for securing respect for human rights; much can be achieved too with quiet persuasion. Many human rights NGOs spend very little time publishing ‘name and shame’ reports; many are wholly occupied in capacity-building work with local communities or, indeed, with governments. Moreover, accountability issues are not particular to IHRL; IHL similarly includes legal demands for accountability including through the prosecution of those responsible for grave breaches of the Geneva Conventions.

In short, advocacy and protection strategies should be driven by the capacities and context of particular organisations, not by misguided assumptions of what technique is required by a particular body of law.

2. (Mis)-identifying the duty-holders

Second, there is the confusion that results from assuming that IHRL is ill-suited to identifying obligations on armed groups (or “non-state actors”), and that IHL uniquely creates obligations on both states and armed groups. This is an outmoded understanding. While it is true that core international human rights treaties place obligations on states, some of the more recent protocols to these treaties include armed groups within their scope. Furthermore, the notion of “crimes against humanity”, deeply influenced by human rights norms, now clearly encompasses obligations on both states and armed or otherwise organised political groups, including outside the context of an armed conflict. And finally, in numerous cases, armed groups have signed accords wherein they commit themselves to abide by certain human rights principles – accords that have been sponsored and in some cases monitored by the international community. There is a discernible trend in IHRL to extend obligations to all those wielding power and in a position to impact on human rights.

3. Overlap or inconsistency?

Third, there are confusions that emerge from what are perceived as differing levels of protection offered by the distinct bodies of law, IHL and IHRL. On this point, it should be emphasised that only in a few instances is there an actual conflict between what IHL or IHRL requires vis-a-vis the civilian population. Some of the most notorious examples of recent years arise in the context of the “war on terror” and centre on disputes over the classification of prisoners (of war or not?), and their corresponding due process rights, or over the legality of a policy of targeted assassinations. These are important issues, but they are unlikely to be a prominent feature in the work of most humanitarian organisations.

The much more common scenario is that one body of law is silent. For example, IHL has little to say in terms of the core freedoms civilians enjoy (to assemble, to political participation, to organise, to speech, etc) - freedoms that are essential if relief agencies are serious about holding themselves accountable to beneficiary populations. Similarly, only by inference can IHRL be invoked to establish the rights of humanitarian actors – such action enjoys specific and detailed protection in IHL.

The strategy then should be clear – protection work should draw on both bodies of law, and use the rules best tailored to the specific protection being sought. Where there is inconsistency, a simple solution is to rely on the standard that provides the greater protection – a logical position as the ultimate goal of both IHL and IHRL is to promote human dignity.

Blog Tags:

International Human Rights

Humanitarian Action

Guest Writer:

David Petrasek

Social Media Use and the Humanitarian Sector

Rob Grace — Thu, 19 Apr 2012 14:15:47 +0000

Blog Type:

IHL in Action

In recent years, humanitarian professionals have undertaken various initiatives that draw on the world’s expanding social media use. Many humanitarian agencies have developed robust presences on Facebook and Twitter, and numerous recently founded non-governmental organizations (NGOs) — such as Ushahidi and infoasaid — are devoted to increasing the effectiveness of communications technology in humanitarian crises. Additionally, in 2009, the United Nations Secretary-General created Global Pulse, an initiative geared toward, as the agency’s web-site states, “harnessing today's new world of digital data and real-time analytics to gain a better understanding of changes in human well-being.”

But critiques have arisen that, despite the prevalence of such initiatives, the humanitarian sector has insufficiently kept pace with social media developments. A policy brief published last month by BBC Media Action asserts, “[A]id workers often dismiss sites like Twitter and Facebook as either frivolous, irrelevant to the communities in which they work or beyond the reach of the poor.” And a recent AlertNet article notes that many humanitarian professionals believe that deeper engagement with social media is necessary for effective humanitarian action.

As the BBC Media Action policy brief states, “evidence suggests that communication matters more than ever to affected communities, especially communications technology, and especially in the hours and days immediately after a disaster.” In some cases — such as the Dadaab refugee camp in Kenya, as examined in a 2011 report published by Internews — crisis-affected communities have undertaken their own social media initiatives. In other cases, though vulnerable populations may not have direct access to social media platforms, traditional media sources upon which these communities rely for information increasingly gather data from social media. In these instances, beneficiaries who do not use social media technologies themselves may still benefit indirectly from social media platforms.

Additionally, the Kony 2012 video demonstrates the potential power of social media for humanitarian advocacy. Released in March 2012, the video was seen by millions of Internet users within days. Many analysts critiqued the video’s content — for example David Rieff, writing for Foreign Policy, called the video “dangerous propaganda” and criticized the video’s creators for not asking: “What might be the risks to Uganda's civilian population if the U.S. government were to give aid and more advanced military equipment to the Ugandan military to track Kony, thus strengthening a regime in Kampala whose hands are anything but clean — as anyone who was in eastern Congo during the Ugandan intervention there in the late-1990s can attest?” But such critiques actually underscore the significant role — whether positive or negative — that social media can play in humanitarian action.

Understanding Core Differences between Human Rights and International Humanitarian Law in Armed Conflict

Dustin Lewis — Tue, 17 Apr 2012 13:41:48 +0000

Blog Type:

IHL in Action

International human rights law (IHRL) and international humanitarian law (IHL) are often perceived as legally synonymous, aiming to achieve similar objectives through legal protection. Yet while they share important features, these two bodies of law have distinct origins and in many ways constitute distinct projects.

At its core, IHRL seeks to regulate the relationship of the government to its population in order to spur the government to do what is necessary to ensure the safety and well-being of its population while allowing the population to pursue their desires unencumbered by unwarranted government intrusion. IHL — also known as the law of armed conflict — is more limited, applying only during armed conflict and seeking generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental mission of transforming the relationship between the government and the population, IHL aims primarily to limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those otherwise hors de combat. In contradistinction to IHRL, IHL continually weighs the humanitarian interests of the population against the interests of parties to armed conflict attempting to achieve their military objectives.

These fundamental distinctions between IHL and IHRL can confuse and confound humanitarians operating in armed conflicts, natural disasters, and other emergency situations. Some of the difficulty may result from the turn by many humanitarian organizations — whose initial ambit was limited to emergency relief amid the tumult of armed conflict — to incorporate (often vague) human rights approaches into their work without identifying the short- and long-term costs and benefits of doing so. Adopting a “dual-hat” approach to humanitarian action, these organizations attempt to combine life-saving assistance alongside building the state’s capacity to promote and protect rights.

Programming that blends humanitarian and human rights objectives is on its face laudable, yet it raises strategic issues for humanitarian policy-makers. As Naz K. Modirzadeh recently argued, the co-application of IHL and IHRL during armed conflict could have significant deleterious effects for civilian protection, including diluting the clarity of IHL, reintroducing a hierarchy of rights, and undermining sovereignty and long-term rights development. Balancing these considerations is one of the many challenges facing humanitarian actors today.

Blog Tags:

IHL

IHRL

humanitarian policy

Human rights obligations and accountability of armed groups

hpcr — Mon, 02 Apr 2012 19:37:24 +0000

Blog Type:

IHL in Action

One of the controversies surrounding armed groups is whether – and to what extent – they bear obligations under international human rights law. The traditional and still dominant conceptualization of human rights addresses only harms done by governments to individuals and leaves largely unaddressed abuses committed by non-state actors and private parties. The relevant treaties are signed and ratified by states and are binding upon them. Thus states incur a range of obligations to respect, protect and fulfill the rights of those in their territory and subject to their jurisdiction. These obligations are monitored by the respective treaty bodies as well as under other universal or regional mechanisms. By not fitting into this scheme, armed groups are not considered as bound by international human rights law. Thus any non-governmental violence is not regarded as amounting to human rights violations but as only having an indirectly harmful effect on the capacity of states to provide basic services and ensure full enjoyment of human rights to affected individuals.

This approach is, however, premised on the shaky assumption that states possess and control a functioning institutional apparatus and that governments are in effective control of the state’s territory. It turns a blind eye to dozens of failing or failed states that are unable to provide even the most basic services to their citizens and other individuals (e.g., refugees) and/or do not control portions of their territory. In such situations the state-centric approach to human rights is largely ineffective and leaves a regulatory and accountability gap, which cannot be filled by applicable rules of state responsibility or international humanitarian law and international criminal law, even if we were to assume the latter’s applicability in all situations. Infringements on the rights to expression, religion, assembly, movement, family, food, work, health, education and others as well as issues of (gender-based or other) discrimination are barely and only indirectly – if at all – addressed by applicable international humanitarian law. This gap should however be filled if the international community is serious about the cause of human security.

Yet, regulation of activities of armed groups in international treaty law is mostly limited to international humanitarian law (i.e., common article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II). As regards international human rights treaty law, armed groups have only found their way into Article 4, paragraph 1 of the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Nevertheless, there is nothing in international law that prevents further regulation of harmful activities of armed groups in situations beyond the reach of international humanitarian law. Many armed groups do not lack the capacity to provide protection to civilians and ensure a variety of their human rights that go beyond the reach of applicable rules of international humanitarian law or, conversely, commit violations/abuses of rights that do not necessarily result in accountability under international criminal law. The international legal system may well accommodate additional obligations (and rights) of non-state actors if treaties are concluded or customary law emerges to that effect. Indeed, apart from treaties, there are plenty of legally significant developments in many conflict situations involving armed groups that are largely unaccounted for and can influence or change the legal landscape if properly documented.

Such developments include the rich practice of the Security Council, which has identified the applicable legal framework concerning armed groups as including human rights obligations and has sometimes enforced such obligations by imposing sanctions on their leaders. This practice is in line with similar developments in the United Nations and elsewhere, such as: UN reports as well as expectations and engagement of UN organs with armed groups on the ground; reports by Truth and Reconciliation Commissions; peace and other agreements concluded between armed groups and concerned governments, often witnessed by other states and/or the UN; declarations and codes of conduct unilaterally undertaken by armed groups under the scrutiny of the international community. Much of this practice has developed in interaction with armed groups, which adds to the legitimacy of the obligations incurred.

When they first appeared, such developments admittedly met with controversy among scholars and some ambivalence in the UN. However, when the problem has arisen on the ground the various concerned actors – including affected governments and the United Nations – in different country situations did not shy away from extending human rights obligations to armed groups in addition to obligations applicable under international humanitarian law. Much of this practice has skipped the attention of international lawyers. However, if such developments are properly documented and if their legal relevance is properly assessed, we may witness a welcome change in the applicable legal framework, which will extend human rights obligations and accountability to powerful armed groups to the extent appropriate to the context, depending on their actual capacity to bear those obligations.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Aristoteles Constantinides

On ICRC Engagement with Non-State Armed Groups: Recent Developments

hpcr — Mon, 02 Apr 2012 19:18:02 +0000

Blog Type:

IHL in Action

Engaging with non-state armed groups has been at the core of ICRC actions for decades. For example, Henri Dunant, the founder of the ICRC, brought humanitarian help and tried to negotiate the release of hostages during the Paris Commune in 1871. According to an ICRC publication from 1900, only 39% of Red Cross operations between 1863 and 1899 happened in "international wars", while 55% were carried out in contexts involving the equivalent of modern-day armed groups. These included both insurgents and non-recognized States. In the 20th century, ICRC action involved dialogue with countless armed groups. For example, following the First World War, the organization was active in Silesia (1921) and Ireland (from 1922). During the Second World War, the ICRC had contact with a number of resistance organizations in occupied Europe and tirelessly worked for better protection of their members, while also visiting German prisoners held by the French Forces Françaises de l’intérieur (1944). In the immediate aftermath of the war, it maintained contact with parties in China, Greece, Palestine under British mandate, and Vietnam. During the Cold War, the ICRC engaged in dialogue with armed groups in Africa, Asia, and Latin America, such as the New People’s Army in the Philippines, the National Union for the Total Independence of Angola (UNITA) in Angola, and the Farabundo Martí National Liberation Front (FMNL) in El Salvador.

Today, given the explosion of non-international armed conflicts and the proliferation of armed non-state actors, far from being a merely temporary phenomenon, they are here to stay as participants in armed conflict and other situations of violence. The question is not whether to deal with them, but rather how to engage them. In the ICRC perspective, dialogue with armed groups can centre around three parallel and linked goals. First, engaging armed non-state groups will serve to improve access and security for the ICRC in the field and to get a better understanding of the groups. Second, this engagement will serve to facilitate the humanitarian response and actions of the ICRC. Finally, engaging non-state armed groups on more sensitive issues such as the conduct of hostilities and the use of force can contribute to an improved respect of all relevant laws through prevention and integration of the law into the doctrines and trainings of those groups.

This news release concretely illustrates the work of the ICRC in the field. It also shows how the ICRC engages non-state armed groups in a dialogue articulated around access, humanitarian response and an improved respect of IHL. This is only one example among many. However, it is encouraging to see that IHL is being discussed more and more among armed groups as greater respect for IHL can make a huge difference for the populations affected by armed conflicts. Understanding why non-state armed groups chose to respect IHL or not is key to working with them on improving the situation. The article, "Reasons why armed groups choose to respect international humanitarian law or not" is a good starting point to make sense of the actions of non-state armed actors.

Blog Tags:

non-state armed groups

IHL

Guest Writer:

Christophe Gillioz

Challenges of compliance of non-state armed groups: one-way obligations?

hpcr — Mon, 02 Apr 2012 19:11:36 +0000

Blog Type:

IHL in Action

As we write, non-state armed groups (‘NSAGs’, also variously described as‘insurgents’, ‘rebels’, ‘insurrectionists’, etc) are mainly seen as law-takers rather than as law-makers, and thus as objects rather than subjects of international law: they are required to comply with international humanitarian law (IHL) without having had the opportunity to participate in the making of the law. This lack of participation has translated into an imposition of duties on NSAGs which is not matched by the conferral of rights. NSAG members who take part in (non-international) armed conflicts are not entitled to combatant or prisoner-of-war status, and can be punished for their mere participation in hostilities, whether or not they comply with IHL. Therefore, at first sight, compliance with IHL yields few advantages for NSAGs. To remedy this imbalance in the structure of the law of non-international armed conflict, it is key that other incentives for compliance are offered to NSAGs, with full respect for the diversity and motivation of the various NSAGs. The most potent incentive for compliance with IHL is perhaps the promise of a broader acceptance of the legitimacy of their struggle, both domestically and internationally. To obtain this legitimacy, NSAGs may want to be seen to comply with IHL by formally pledging adherence to IHL in various legal instruments. These pledges are performative speech acts in an Austinian sense: they do not simply describe a reality, but by being uttered they transform it. By formally pledging to abide by it, they exhibit an enhanced willingness and expectation that compliance will indeed be forthcoming.

There are a number of legal instruments through which NSAGs can give their actual consent to be bound. All of them—unilateral declarations, codes of conduct, special (bilateral) agreements and multilateral agreements—have their respective advantages and drawbacks. The most important drawback, as with any declaration or agreement, is that a declaration or agreement adopted by an NSAG may not be worth much if it is not backed up by credible compliance monitoring or sanctions. Monitoring and enforcement by independent and disinterested agencies may indeed be considered as the backbone of a genuine ‘rule of law’.

Interestingly, some innovating initiatives have recently been developed to monitor IHL compliance by NSAGs. Notably the Security Council’s Monitoring and Reporting Mechanism, which monitors the IHL record of NSAGs in respect of children in armed conflict, and the NGO Geneva Call’s monitoring of NSAGs compliance with the ‘Deed of Commitment’ deserve mention in this regard. Monitoring may result in naming and shaming recalcitrant NSAGs, but in case of persistent or gross violations, sanctions that bite may have to be contemplated. NSAGs’ and their members’ assets might be frozen, their travel may be restricted or they may be criminally prosecuted, possibly even by courts set up by the NSAG itself.

Blog Tags:

IHL

non-state armed groups

Guest Writer:

Cedric Ryngaert

Counter-Terrorism Laws Regulating Humanitarian Engagement with Non-State Armed Groups

Rob Grace — Thu, 29 Mar 2012 14:56:30 +0000

Blog Type:

IHL in Action

Over recent years, humanitarian organizations have become increasingly wary that their engagements with Non-State Armed Groups (NSAGs) are being limited or even prohibited by counter-terrorism legislation. For example, as noted previously by HPCR, humanitarian aid agencies operating in Somalia face the risk that aid might wind up in the hands of al-Shabab, a NSAG that controls a large portion of territory in southern Somalia. Since al-Shabab is listed on the U.S. State Department list of Foreign Terrorist Organizations, the U.S. Treasury Department’s list of Specially Designated Nationals, and the United Nations’ Somalia and Eritrea sanctions regime list, individuals who provide humanitarian assistance that inadvertently aids al-Shabab could be subject to criminal penalties. The connection between humanitarian assistance and terror activities in Somalia has been the topic of intense debates over the report of the UN Security Council’s mandated Monitoring Group identifying significant instances of diversion of assistance toward NSAGs in Somalia.

Material support may also encompass many other forms and types of relationships. The U.S. Treasury Department has begun investigating various individuals — including Edward G. Rendell, former governor of Pennsylvania — who have publicly advocated for the removal of the People’s Mujahedin of Iran (MEK), an Iranian group devoted to overthrowing the current Iranian regime, from the U.S. State Department list of Foreign Terrorist Organizations. If Rendell’s speaking fees, as well as those of other MEK advocates, were paid for by the MEK itself, these advocacy efforts may violate U.S. counter-terrorism regulations. This story underscores the fact that the risk of criminal prosecution that humanitarian professionals face is very real.

An article, written by my colleagues, in the current issue of the International Review of the Red Cross (IRRC) provides an in-depth exploration of how this issue is affecting the humanitarian aid community. The article frames the issue as a tension between, on the one hand, domestic and international counter-terrorism laws, and on other hand, international law (including international humanitarian law and United Nations Security Council resolutions) that establishes principles for providing humanitarian assistance. As a result of this “complex web of laws and policies,” as the article notes, humanitarian professionals are often unsure if the actions they are undertaking are legal.

But the article also examines possible methods of grappling with the tension between these two bodies of laws. Humanitarians could endeavor to resolve this tension by focusing “on the creation of new national or international norms clearly delineating the role, means, and methods” of engaging with non-state armed groups, or by developing professional standards that entail “ad hoc agreements with states and military representatives within a variety of contexts.” On the other hand, humanitarians could choose to “opt out” of situations in which counter-terrorism laws may apply, to continue to provide assistance in such situations but do so “below the radar,” or to begin operating “under the leadership of political and security actors.”

As the U.S. Treasury Department investigation of MEK’s advocates indicates, the humanitarian aid community faces a very real risk. And the dilemma is unlikely to be resolved without, as the IRRC article notes, “expanded negotiation skills and a thorough legal understanding on the part of humanitarian professionals, both at the stage of planning operations at headquarters and at the stage of implementing programmes in the field."

Blog Tags:

armed groups

Briefing Note: Armed Groups and International Law — Challenges to Humanitarian Action

Dustin Lewis — Wed, 28 Mar 2012 18:51:12 +0000

Blog Type:

IHL in Action

Engaging with non-state armed groups has always been a challenging task. Yet such engagement is perceived among humanitarian professionals as an integral part of negotiating access and advocating for compliance with the rules of international humanitarian law (IHL) and human rights law. Two recent news items illustrate the complexity of these humanitarian tasks. First, on March 14 the International Criminal Court issued its inaugural trial judgment, finding Thomas Lubanga Dyilo — the head of the Union of Congolese Patriots during a conflict in the Ituri region of the Democratic Republic of the Congo about a decade ago — guilty of the war crimes of enlisting and conscripting child soldiers and using children to actively participate in hostilities. (Disclosure: I served as a Visiting Professional to Judge Sir Adrian Fulford, who is one of the three trial chamber judges in the case.) Second, "Kony 2012" — a (now viral) video, viewed over 85 million times, that casts a spotlight on Joseph Kony, the head of the Lord's Resistance Army and subject of an ICC arrest warrant — garnered unprecedented attention. Both of these events relate primarily to the use of child soldiers by armed groups. Yet many other facets of civilian protection — such as prohibitions on attacks against civilians and humanitarian access to civilians under armed groups' control — are linked to armed groups in certain contemporary armed conflicts as well.

Humanitarian actors face multifaceted challenges to developing principled and effective engagement strategies with armed groups in non-international armed conflicts (NIACs). Part of those challenges stems from the lack of a coherent and exhaustive normative framework to engage with armed groups. This is due in no small part to states' politically driven resistance to developing international legal standards reflecting the prominence and stature of armed groups — a challenge that goes to the heart of the international legal system, as states are the primary makers of international law. This challenge, in turn, contributes to a fundamental tension between states and humanitarians. On the one hand, a state battling an armed group seeks to eliminate any support that may confer a military or political benefit to the group. On the other hand, humanitarians seek to provide humanitarian relief to all of those not, or no longer, participating in hostilities regardless of their political or ideological affiliation.

This tension has been magnified amid reports in recent years of an increase in non-international armed conflicts — that is, conflicts waged between a state's armed forces and an organized armed group, or between such groups. Whether there has been actual increase in such conflicts, or whether this purported trend rather reflects increased scrutiny of conflicts that have gone relatively unrecognized for a long time, is an open question. Yet regardless of the answer to that question, there is a clear need for norms and methods of engagement with armed groups given the reality of their existence. As explained below, however, the legal parameters pertaining to armed groups are unclear in important respects. This is because, in short, states have remained cautious in regulating non-international armed conflicts, in part since states do not want to privilege the position of armed groups and in part since states fighting armed groups do not want to be exposed to more scrutiny from other states, intergovernmental organizations, and non-governmental organizations (NGOs).

Largely made by states, international law applicable to armed groups has developed in fits and starts over the last six decades. When it comes to ownership over the rules, an asymmetry has therefore arisen between states and armed groups. Armed groups often see themselves as having less say over the content of the rules, and consequently may consider themselves less bound to comply with them.

Generally speaking, two sets of responses have attempted to allay concerns about potential "gaps" or "lacunae" of international law applicable to armed groups in NIACs. First, in arguing that the legal framework governing NIACs is sufficient, positivists point to the adoption of Common Article 3 in 1949 (CA3) and of Additional Protocol II of 1977 (AP II). These treaty provisions entail important protections for those not, or no longer, participating in hostilities. Yet an array of issues remains unresolved by the text of CA3 (and, to a lesser extent, AP II, which in any event many states have not become a party to). Those issues include the legal basis on which armed groups are bound to comply with provisions of CA3 and AP II, the legal basis for and scope of so-called security detention, and the rules governing conduct of hostilities. Second, to help fill-in perceived "gaps" in the treaty provisions applicable to NIACs, judges of international tribunals and international law scholars — as well as the International Committee of the Red Cross — have identified (some might less charitably say developed) rules of customary law drawn from international law applicable to interstate conflicts, which are much more regulated in treaties than non-international armed conflicts.

This is not to say that international humanitarian law (IHL — also known as the law of armed conflict) does not provide at least a minimal basis for humanitarians to engage with armed groups in NIACs. IHL does so, for example, by allowing independent and neutral humanitarian organizations to offer their services to all parties to non-international armed conflicts. Yet in important respects IHL alone does not provide an exhaustive framework for principled engagement with armed groups.

Humanitarian actors therefore face the question of how to prevent violations and abuses by armed groups — how, in effect, to change their behavior — while recognizing the limited nature of the relevant legal system. Three potential routes — political, professional, and technical — may be useful to consider.

From a political perspective, humanitarian actors may consider engaging in attempts to mediate the underlying tension — namely, states' aim to eliminate support to armed groups and humanitarians' concern for the well-being of everyone based on their common humanity. Humanitarians may do so by emphasizing the need to engage with armed groups in order to provide life-saving assistance to those not, or no longer, participating in hostilities.

Within the professional realm, humanitarians may continue to identify and develop methods and modalities of principled engagement with armed groups in NIACs. Various NGOs — such as Geneva Call and Centre for Humanitarian Dialogue — have undertaken such initiatives. Given the inexhaustive nature of the applicable legal framework, in developing methods and modalities of engagement humanitarians may focus more on social norms than on legal norms. Like all organizations, armed groups are products of their time, place, and location. As such, they adhere to specific social, cultural, and religious norms. Humanitarians may learn more about the norms of these organizations — some of which are reflected in codes of conduct — and develop protection strategies drawn from them.

As a technical matter, humanitarians may choose to devote more resources to researching how to influence the behavior of armed groups in order to promote compliance with humanitarian principles and norms. Building off recent research, humanitarians may attempt to identify, for example, which social norms, economic factors, and political attributes are likely to shape the behavior of armed groups.

In sum, given the continued relevance of armed groups in many contemporary armed conflicts, it is imperative for humanitarian actors to understand what legal and political constraints operate to limit principled humanitarian engagement with armed groups, and how to devise professionally developed protection strategies to undertake such engagement.

Blog Tags:

IHL

armed groups

Critically examining equality of belligerents in non-international armed conflicts

hpcr — Thu, 22 Mar 2012 20:02:10 +0000

Blog Type:

IHL in Action

By Marco Sassòli

The questions I raise in this blog arose both during my teaching, research, and drafting of publications on IHL, and out of my practical experience working for 13 years for the International Committee of the Red Cross (ICRC) and chairing the board of Geneva Call, an NGO engaging armed groups to respect humanitarian norms. For the following reasons, in the discussion with Yuval Shany published in the issue of the International Review of the Red Cross on understanding armed groups, I take the position that the principle of equality of belligerents in non-international armed conflicts limits the impact of international humanitarian law (IHL) on the conduct of non-state armed groups and their compliance with key provisions. We should, therefore, consider abandoning this principle, or at least modifying it, in non-international armed conflicts.

As with all law, IHL has to take into account the social reality it seeks to govern. Non-international armed conflicts are by definition fought as much by armed groups as by governmental armed forces. If the law takes the needs, difficulties, and aspirations of only the latter into account, it will be less realistic and effective. In my view, for all existing, claimed, and newly suggested rules of IHL, or whenever we interpret IHL, we have therefore to assess whether an armed group with the necessary will is able to comply with the identified rule, without necessarily losing the conflict. If this is not the case, the armed group will likely not comply with the rule, and the impression, by the armed group, that IHL is not realistic will undermine the credibility and protective effect of other rules, including rules that an armed group is able to comply with.

At least three examples raise doubts in this respect. First, the current tendency of international criminal tribunals, the ICRC, and scholars to bring IHL of non-international armed conflicts closer to that of international armed conflicts, mainly via alleged customary rules, may have the negative side effect that armed groups are claimed to be bound by rules that only States can comply with. Second, the increasing integration of human rights standards into IHL may lead to a similar result. Third, the combination of a minimum age of 18 to participate in hostilities and a broad concept of (prohibited) involvement of children with armed groups results in requirements that largely make it impossible for members of armed groups to remain together with their families and to be supported by the whole population.

These and other examples may lead to the conclusion that IHL should apply to armed groups according to a sliding scale of obligations that will increase according to the intensity of violence and the degree of organization of the group. Such a sliding scale of obligations would not be revolutionary. The threshold of application of Additional Protocol II, which is much higher than that of Article 3 common to the Conventions, already results in such a sliding scale. AP II’s relatively higher threshold is perhaps realistic for armed groups, because only those groups that control territory (which is one of the conditions for the Protocol, but not for Common Article 3, to apply) may be able to respect certain rules of the Protocol.

Such a sliding scale of obligations will in turn lead to the question of whether the principle of equality of belligerents under IHL is appropriate in non-international armed conflicts (because it is not objectively needed for governmental forces and is only due to the (in)ability of the armed group). On the one hand, equality of belligerents is a cardinal principle of international humanitarian law, and there are good theoretical and even more compelling practical reasons to apply it equally in non-international armed conflicts, however morally justified a conflict may be, as in rebellions against a dictatorial government, the battle between a democratic government and a terrorist group, or efforts to combat an armed group seeking to loot natural resources or engaged in drug trafficking. The victims of the conflict on both sides need the same protection. On the other hand, the principle of equality of belligerents combined with the need to keep IHL rules realistic for armed groups would lead to the result that well-organized governmental forces would be bound by more rudimentary IHL rules if their enemy is not well organized, even though the governmental forces could perfectly comply with more demanding rules. This result is, however, unsatisfactory only when one looks at IHL alone. If one includes international human rights law (IHRL) into the picture — given that States are bound by IHRL while armed groups are not (or, according to more progressive theories, at least not bound to the same extent) — war victims would nevertheless benefit from full, if not better, protection from governmental forces, because when IHL does not apply as lex specialis, IHRL fully applies.

There is another way out of the finding that some developed rules of IHL may be unrealistic for armed groups to comply with: abandon the principle of equality of belligerents and require from the government full respect of customary and conventional rules of IHL while requiring from their enemies respect according only to their objective ability to respect certain rules. The better organized an armed group is and the more stable control the group has over territory, the more similar the applicable rules would be to the full international humanitarian law of international armed conflicts. In my debate with Yuval Shany published in the latest issue of the International Review of the Red Cross, I defend this position.

Blog Tags:

Non-international armed conflict

Guest Writer:

Marco Sassòli

Professionalization Calls for Increased Accountability in the Humanitarian Sector

Anaïde Nahikian — Fri, 16 Mar 2012 21:54:19 +0000

Blog Type:

IHL in Action

The number of international humanitarian organizations responding in complex emergencies has increased significantly in recent years. This growth undeniably represents much-needed new capacity and opportunities for engagement. However, this trend has also increased risks of disorganized, substandard, and uncoordinated intervention, in which relief efforts are duplicated in some situations, while gaps remain in others. The neutral, independent nature of humanitarian action has also given substantial leeway for organizations to operate independently of external or central accountability frameworks. As a result, the humanitarian sector faces key challenges in the coordination and coherence of a standardized, global emergency response.

The United Nations and other international agencies have made significant efforts toward systematizing humanitarian response in times of crisis, through cluster programming and integrated missions, developing professional standards and leadership training (SPHERE), while promoting accountability measures toward donors, host states, peers, and beneficiaries (ALNAP and HAP). While these efforts demonstrate the humanitarian community’s commitment to shaping an overarching professional culture, there is yet to be a consensus on the need to strengthen accountability frameworks per se, as a means to improve efficiency of humanitarian action. For many humanitarian professionals, aid agencies remain accountable to themselves, an idea that complicates efforts to develop a robust and professional humanitarian response system.

Specific mandates for humanitarian organizations operating in complex emergencies are provided under Article 3 of the Geneva Conventionsand the UN General Assembly Resolution 46/182. These norms recognize privileged access of humanitarian agencies to populations in need, upon consent of the host states, so long as agencies remain neutral, impartial, and independent in their operations. As a result, under international law, humanitarian organizations remain accountable to host states for the delivery of assistance, and to other high-contracting parties to ensure that these guiding principles of humanitarian assistance are upheld.

The current debate regarding increased professionalization and accountability goes to the heart of humanitarian action. Some believe that humanitarian assistance loses its intrinsic voluntary and charitable nature as it becomes progressively more accountable, standardized, and professionalized. It is also argued that increased accountability is in direct opposition with the principles of independence and neutrality, notwithstanding that improved accountability leads to effective delivery of assistance.

Moving forward, it has become evident that humanitarian agencies are becoming isolated, as crises are increasingly complex and multidimensional, with shrinking distinctions between social, political, and development initiatives. Humanitarian agencies must increasingly work within the existing frameworks of integration and cooperation. In light of this, there must be an understanding within the professional community that a balance must be struck between good organisational management and clear standards of humanitarian action. Defining such a balance will require leadership, innovation, and agility, whether as a broad framework or on a case-by-case basis. Areas of policy interest may include identifying tools and methods for accountability, certification, and monitoring; fostering the growth of a connected community of professionals; and adopting standards for negotiating access and humanitarian corridors. Ultimately, accountability frameworks should be at the center of efforts to professionalize humanitarian action.

Briefing Note: Does IHL apply to the humanitarian situation in Syria?

Dustin Lewis — Mon, 12 Mar 2012 20:34:16 +0000

Blog Type:

IHL in Action

Recently, international bodies and commentators have made several references to international law applicable to the deteriorating situation in Syria. The purpose of this briefing note is to clarify the extent to which IHL — also known as the laws and customs of war and the law of armed conflict — applies (if at all) to the violent situation in Syria between government forces and the armed opposition. While the debate seems open at this stage, the answer to this question may have important implications for the civilian population in Syria in terms of humanitarian assistance, the right not to be arbitrarily deprived of life, and other facets of civilian protection. (This primer does not address the applicability of IHL to the Golan occupied by Israel since 1967.)

What is IHL?

As summarized by the International Committee of the Red Cross, “International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”

IHL regulates two types of armed conflicts: (1) international armed conflicts and (2) non-international armed conflicts. According to the ICRC:

1. International armed conflicts exist whenever there is resort to armed force between two or more States.

2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.

If an armed conflict exists between government forces and armed groups in Syria it would be non-international in character, unless another state sufficiently supports the opposition, which could “internationalize” the conflict. (You can read more about what might “internationalize” a previously non-international armed conflict here.)

How would IHL affect protection of civilians in Syria?

In situations of armed conflict, IHL provides a range of protections for civilians and other persons hors de combat (outside of combat). It establishes a legal framework for the conduct of hostilities between the parties to armed conflict by, for example, prohibiting direct attacks against civilians and civilian objects. Under IHL, an attack directed against a military objective, a combatant, or a civilian directly participating in hostilities — even if it results in incidental civilian death — is not prohibited so long as the attack meets legal criteria under IHL. Those criteria include the prohibition of indiscriminate attacks, proportionality of the anticipated effects of the attack against civilians and civilian objects, precautionary measures to limit harm to civilians, and the prohibition of certain weapons and methods of warfare.

When determining if a specific right has been violated during armed conflict, generally speaking IHL prevails over other legal frameworks, such as international human rights law (IHRL). In particular, according to an advisory opinion of the International Court of Justice, in situations of armed conflict IHL standards prevail over IHRL standards when determining what constitutes an “arbitrary” deprivation of life.

Somewhat paradoxically, compared to IHRL, IHL sets a lower standard of protection for civilians against violence in armed conflict, especially regarding what constitutes an “arbitrary” deprivation of life. Under IHRL, the use of force is generally regulated as a law-enforcement measure. To protect everyone’s inalienable right to life, IHRL requires that the government use the least harmful means (e.g., the lowest level of force) necessary to neutralize an immediate threat to the life of the population or state agents. This standard of protection does not exist in IHL for civilians who directly participate in hostilities — that is, those who contribute sufficiently to the military efforts of an organized armed group. Under IHL, these individuals can be targeted at any time, so long as they continue directly participating in hostilities.

Nonetheless, under IHL humanitarian organizations have solid grounds to engage in relief operations. Common Article 3 of the Geneva Conventions provides that independent and impartial organizations acting on a neutral basis may offer their services to all the parties in order to assist populations affected by the conflict.

What are the sources of IHL governing non-international armed conflict?

As with other fields of public international law, the main sources of IHL applicable to non-international armed conflict include treaties and custom.

Treaties

Two IHL treaty provisions concern the scope of non-international armed conflict. Common Article 3 of the four Geneva Conventions applies "[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." Additional Protocol II (AP II) sets a higher threshold of application by applying to armed conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." While the International Court of Justice (among others) has held that Common Article 3 reflects customary law, AP II applies only with respect to states parties. Syria has not become a party to AP II, so if the situation there amounts to a non-international armed conflict, then Common Article 3 and customary IHL would apply.

Custom

There are many fewer treaty provisions expressly applicable to non-international armed conflict than to international armed conflict. Importantly, however, numerous provisions of customary IHL apply during situations of non-international armed conflict. (You can learn more about what constitutes custom through this primer.)

In 2005, the International Committee of the Red Cross published a study on customary IHL. The ICRC identified 161 customary rules of IHL, of which 148 apply in non-international armed conflict.

How can you tell when a non-international armed conflict exists?

State practice, international jurisprudence, and the writing of learned publicists have developed two sets of commonly used cumulative criteria to determine if a situation amounts to a non-international armed conflict to which customary IHL would apply.

Organization of the Parties

First, there must be two or more parties — for example, government forces fighting an organized armed group, or two organized armed groups fighting each other. For IHL to apply, the armed group must meet a certain level of organization. International jurisprudence has developed indicative factors to assess whether the "organization" criterion is established in a non-international armed conflict. As summarized by Jelena Pejic, those factors "include the existence of a command structure and disciplinary rules and mechanisms within the armed group; the existence of headquarters; the ability to procure, transport, and distribute arms; the group’s ability to plan, co-ordinate, and carry out military operations, including troop movements and logistics; its ability to negotiate and conclude agreements such as ceasefire or peace accords; and so forth."

Intensity of the Violence

Second, the intensity of the violence must meet a certain threshold as assessed by the relevant facts on the groups. As developed by international jurisprudence, indicative factors to examine the "intensity" criterion include:

[T]he seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.

Have international bodies found that there is a non-international armed conflict in Syria?

The debate on the applicability of IHL to the violent situation in Syria continues apace. In recent weeks, several international entities have taken, or have avoided taking, positions on this issue, including the UN Commission of Inquiry on Syria and the UN Security Council.

Commission of Inquiry

After examining the "organization" of the parties and the "intensity" of the violence criteria, the Independent International Commission of Inquiry on the Syrian Arab Republic did not apply IHL in its February 22, 2012 report: "While the commission is gravely concerned that the violence in certain areas may have reached the requisite level of intensity, it was unable to verify that the Free Syrian Army (FSA), local groups identifying themselves as such or other anti-Government armed groups had reached the necessary level of organization." Nonetheless, the Commission reported that:

Following a further review of its evidence, including information collected since November 2011, the commission is satisfied that a reliable body of evidence exists that, consistent with other verified circumstances, provides reasonable grounds to believe that particular individuals, including commanding officers and officials at the highest levels of Government, bear responsibility for crimes against humanity and other gross human rights violations.

Unlike war crimes, which must have a sufficient nexus to an armed conflict, crimes against humanity may be committed outside of situations of armed conflict.

UN Security Council

For its part, the United Nations Security Council has not expressly applied IHL to the fighting between government forces and armed groups in Syria. Yet the UNSC couched its recent press statement “deploring the rapidly deteriorating humanitarian situation” in Syria in IHL-like terminology. For example, the members of the Council:

call upon the Syrian authorities to allow immediate, full and unimpeded access of humanitarian personnel to all populations in need of assistance, in accordance with international law and guiding principles of humanitarian assistance. They call upon all parties in Syria, in particular the Syrian authorities, to cooperate fully with the United Nations and relevant humanitarian organizations to facilitate the provision of humanitarian assistance and allow evacuation of the wounded from affected areas.

In certain respects, the scope of what this press statement seeks is unclear. While calling for unimpeded humanitarian access in accordance with international law, the Council refers to a concept that pertains to IHL yet the Council does not expressly recognize a state of armed conflict between government forces and members of the armed opposition. In situations short of armed conflict, international law does not provide as strong of grounds to request humanitarian access to the Syrian government, which in principle retains full control as a matter of sovereignty. Indeed, the very Guiding Principles referenced in the press statement express this standard.

In conclusion, the application of IHL to the situation in Syria very much depends on the level of organization of the Syrian opposition engaged in armed hostilities. Applying IHL would provide clear benefits in terms of grounds to negotiate humanitarian access to the population in need. Yet applying IHL would have costs as well, not least in terms of protection of the right to life, which IHL makes contingent on specific conduct-of-hostilities rules. Overall, the qualification of the situation should foremost aim to improve protection of civilians in Syria and not to favor one party over another.

ODI Report: International Humanitarian Protection Disconnected from Local Needs and Efforts

Anaïde Nahikian — Thu, 08 Mar 2012 20:09:35 +0000

Blog Type:

IHL in Action

A recent report produced by the UK Overseas Development Institute (ODI) reveals an increasing disconnect between humanitarian relief initiatives and the local populations that these endeavors aim to protect. ODI’s analysis of several case studies (including Myanmar, Sudan, South Sudan, and Zimbabwe) indicates a significant difference between local perceptions of protection and international aid priorities. In these cases, local communities viewed humanitarian assistance, at best, as limited, and at worst, as counterproductive and in conflict with local values and needs. As the report notes, some local communities indicated that their own efforts to cope with their vulnerabilities and protect themselves in times of crisis appears to be more effective than those of the international community. This disconnect not only illustrates a persistent deficiency in the understanding of beneficiaries’ needs and views but also represents a key obstacle to the professionalization of the humanitarian sector.

Under the Responsibility to Protect (R2P) principle, the international community has a duty to intervene to protect civilians in circumstances — such as Libya in 2011 or Syria today — in which the State is no longer able or willing to prevent major abuses to its population. However, as the ODI report explains, though humanitarian actors in such contexts work to fulfil their own mandates, often these actors do not sufficiently support and empower local communities in their own protection strategies. Furthermore, some critics argue that by emphasizing coordination policies and standard evaluation mechanisms, such as log-frames, humanitarian agencies actually obstruct opportunities for effective interaction and engagement with international and local actors at the field level. As the ODI report notes, beneficiaries are “protecting themselves and identify what they think might help them, [yet] the mainstream humanitarian mechanism can’t actually deliver that because [those needs don’t] fit into our humanitarian box.”

This report challenges the traditional operating procedures of international humanitarian agencies in crisis situations. In particular, the study highlights a number of significant critiques:

· Local communities do not necessarily make a distinction between immediate protection priorities (such as safety and security) and long-term improvement of their livelihoods;

· Non-state armed groups are recognized by the local populations as key actors in community protection and resilience, through provision of security, food, and medical assistance;

· In other cases, local representatives and religious leaders should be recognized in humanitarian efforts due to their considerable influence on political processes and possibilities for advocacy for their own communities.

The humanitarian sector must reach a consensus over how to assess possibilities of engagement with communities. According to ODI, while the humanitarian space must maintain its neutrality and independence, particularly in complex situations, aid agencies must nevertheless ensure proper connections with local and national political structures and processes. At the professional level, humanitarians must work toward connecting and collaborating with communities, better understanding local perspectives and priorities, and remaining agile enough in specific operations to meet the concerns and needs of beneficiaries. Furthermore, humanitarian actors should do more to support existing community resilience strategies to ensure sustainable recovery on the long term.

Humanitarian Corridors vs. Humanitarian Truce: The Debate Continues

Rob Grace — Tue, 06 Mar 2012 21:14:42 +0000

Blog Type:

IHL in Action

The debate over the best way to provide humanitarian assistance to civilians in Syria continues. On Tuesday, after Syrian forces bombed a bridge that civilians were using to flee to Lebanon, Turkey’s Prime Minister, Recep Tayyip Erdoğan, stated that “[h]umanitarian corridors must immediately be opened.” In response, the International Committee of the Red Cross (ICRC) reiterated its opposition to this option. ICRC spokesman, Saleh Dabbakeh, stated, “The ICRC does not believe that humanitarian corridors are the ideal solution to what is happening in Syria,” so “[w]hat we have called for is the humanitarian pause where there is fighting that will last for two hours and it will take place every day.” News reports indicate that the ICRC has been negotiating the humanitarian truce option with both government and opposition leaders for at least two weeks.

As noted in previous HPCR posts, some from the humanitarian sector worry that emergency relief initiatives will inexorably lead to political and military intervention while others, who support political and military intervention, argue that humanitarian aid is not enough in view of the systematic abuses to the civilian populations. (For a comprehensive examination of the Syrian security crackdown in Homs, see this Human Rights Watch report from last fall.)

This debate continues amidst various initiatives geared toward addressing the crisis. On Wednesday, Valerie Amos, the United Nations Under Secretary General for Humanitarian Affairs and Emergency Relief Coordinator, will begin a three-day visit to Syria. And Kofi Annan, the joint United Nations Arab League envoy to Syria, will visit Damascus starting Saturday. (Though, as the International Crisis Group notes, Annan’s mission represents “a chance to rescue fading prospects for a negotiated transition” but faces a “slim chance” of success.) Additionally, China’s former ambassador to Syria, Li Huaxin, now China’s special envoy to Syria, will visit Syria this week, and Russia will meet with various Arab League countries in Cairo to discuss the crisis on Saturday.

Challenges of Accountability toward Beneficiaries in Humanitarian Relief

Anaïde Nahikian — Fri, 02 Mar 2012 22:22:48 +0000

Blog Type:

IHL in Action

The growing professionalization of the humanitarian sector and the corresponding “accountability deficit” in relief interventions has been the subject of on-going dialogue among international aid agencies and humanitarian professionals. Numerous recent initiatives — such as the Humanitarian Accountability Partnership (HAP), the Sphere Project, and the Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP) — are devoted to increasing accountability standards and practices. Additionally, agencies such as ActionAid have made a public commitment to improve accountability in crisis response, particularly in view of lessons learned after the Haiti earthquake, as well as other humanitarian emergencies.

Many humanitarian actors believe that the persistent lack of accountability toward beneficiaries represents a key barrier to the field’s continued professionalization. This concern suggests that humanitarian organizations should not only enhance their traditional accountability practices to donors and host states, but also recognize the importance of establishing effective accountability mechanisms toward beneficiaries. Accountability toward beneficiaries entails empowering individuals and communities at the field level to become active participants in the relief and development process, to assert their rights and demand greater transparency from humanitarian organizations, and partnering with them for sustainable community recovery. For some, “by seeking to empower communities to demand quality and effective humanitarian interventions, accountability by default becomes a political project”.

Some critics argue that efforts to strengthen accountability toward beneficiaries are unnecessary, particularly given the fundamentally charitable and voluntary nature of humanitarian assistance. For others, empowering and involving beneficiaries in recovery efforts may affect agencies’ abilities to remain “truly” independent and impartial under international humanitarian law. Indeed, humanitarian organizations constantly struggle — particularly in complex political environments — to adhere to the established principles of neutrality, impartiality, and independence. And furthermore, there are few legal frameworks to adequately enforce accountability mechanisms. Thus, the capacity of organizations to effectively adhere to humanitarian principles depends primarily on organizations’ abilities to maintain transparency and clear accountability structures to all stakeholders, including donors, host states, local authorities, and affected communities.

In view of the limited regulatory frameworks for accountability, as the humanitarian field continues to evolve, professionals should engage in strategic thinking geared toward developing a consensus on effective accountability and transparency mechanisms. Such initiatives should apply to all organizations and operations, though each situation may require an additional assessment that examines the best methods of applying these standards on a case-by-case basis. Professionals must also clearly determine a shared vision for their relationships with beneficiaries and commit to fostering on-going partnerships and empowerment strategies that directly engage beneficiaries in processes for relief, development, and sustainable recovery.

Blog Tags:

humanitarian accountability

Distinguishing Humanitarian Assistance from Political Mediation in Syria

Rob Grace — Fri, 02 Mar 2012 16:25:32 +0000

Blog Type:

IHL in Action

The debate over how to handle the crisis in Syria is contentious. The Saudi Arabian delegation walked out of last week’s Friends of Syria meeting, stating that humanitarian aid alone was “not enough” to deal with the crisis. The Syrian delegation to the United Nations walked out of Tuesday’s United Nations Human Rights Council (UNHRC) debate on the issue, stating that the discussion would “fuel the flames of terrorism” in Syria. And Hilary Clinton has called China and Russia’s two United Nations Security Council (UNSC) vetoes “despicable.” In each case, humanitarian access to civilians in Syria suffered by being tied to political discussions on how to address the growing crisis.

The policy disagreements are indeed vast. Some analysts believe mediation efforts are unlikely to succeed, and others believe military force is necessary. Kofi Annan — the recently appointed United Nations-Arab League Special Envoy on Syria — has stated that “dialogue” is “the way to go,” for which David Bosco of Foreign Policy accuses him of suffering from “mediator’s malady,” which he defines as “the assumption that because you have been tasked with mediating, that mediation is therefore the best and most effective option.”

But amidst these debates, a consensus is emerging around the necessity of providing humanitarian aid. The United States and France are crafting a UNSC resolution that focuses on granting humanitarian actors access to Syria. And yesterday both Russia and China joined the rest of the UNSC in agreeing to a statement that “deplores[s] the rapidly deteriorating humanitarian situation” in Syria and “call[s] upon the Syrian authorities to grant immediate and unhindered access” to Valerie Amos, the United Nations humanitarian aid chief. This statement is the first UNSC action addressing the Syria crisis and could prove to be a turning point.

One challenge in capitalizing on this consensus will be to assure skeptics (like Saudi Arabia) that humanitarian measures will not serve as a substitute for more robust endeavors to resolve the crisis. A second challenge will be to assuage those who hold the opposite concern: that humanitarian assistance will not set the stage for a political and security intervention. As noted in a previous HPCR blog entry, operationalizing the “Responsibility to Protect” (R2P) doctrine always arouses fears that R2P initiatives can be exploited for political gain. Furthermore, as HPCR noted here, some options for providing humanitarian protection — including creating humanitarian corridors — will require coercive measures for effective enforcement. For this reason, some worry that measures to provide humanitarian aid and/or protection will inexorably lead to further political, or even military, intervention. Some of the more contentious debates about Syria have surrounded these issues. (For example, see this debate between Anne-Marie Slaughter and Jeremy Scahill, as well as others, over the merits of Slaughter’s proposal — as articulated in a recent New York Times op-ed — to establish “no kill zones” near the borders of Turkey, Lebanon, and Jordan.)

While one group of skeptics fears that humanitarian initiatives could lead to further intervention, the other group fears that humanitarian initiatives could prevent further intervention. But both groups support and acknowledge the importance of humanitarian aid. The success of consensus building efforts will hinge on the ability of humanitarian aid proponents to address these two contrasting sets of concerns by emphasizing the neutral character of humanitarian action. The ICRC and other agencies will be able to provide life-saving assistance to populations in need only when all parties agree that such assistance is truly neutral, impartial, and independent.

Blog Tags:

Syria

Humanitarian Access

R2P

Syria: Humanitarian corridors will depend on international commitment to protect civilians

Claude Bruderlein — Fri, 24 Feb 2012 20:17:52 +0000

Blog Type:

IHL in Action

Amidst United Nations Security Council (UNSC) gridlock over taking action on Syria, the international community has begun seeking alternate routes to address the humanitarian crisis. One set of options entails establishing either a limited truce (in which Syrian authorities and rebels would agree to stop fighting for limited periods of time to allow humanitarians to deliver aid) or a humanitarian corridor (which would provide a protected space for civilians in need of humanitarian aid). According to recent reports, ICRC President Jakob Kellenberger has held talks with senior officials of the Syrian opposition about plans for a humanitarian truce,. The ICRC is playing a critical role in this regard, per its mandate under Article 3 of the Fourth Geneva Convention and the Statutes of the International Red Cross. This initiative exemplifies the humanitarian community’s consistent efforts to distinguish its activities from politically or security-driven interventions, such as those discussed at the UNSC or in the recent meeting of the Friends of Syria group in Tunisia.

Paradoxically, these negotiations are taking place as the UN-mandated Independent International Commission of Inquiry on the Syrian Arab Republic released a special reportconcluding that Syrian authorities at the highest level, as well as opposition forces, have committed gross and systematic violations of human rights, which may amount to crimes against humanity. The UN report’s recommendations are of particular interest to humanitarians, considering that negotiations for a limited truce or a humanitarian corridor are taking place with parties that, according to the UN panel, “bear responsibility for crimes against humanity and other gross human rights violations.”

These negotiations, albeit humanitarian in essence, carry major political significance, as their outcome may affect the international community’s determination to undertake a more integrated, long-term political and security intervention in Syria. For example, a humanitarian corridor may require a peacekeeping mission for enforcement, and hence may be seen as an option that lays the groundwork for intervention. Parties to the conflict are therefore likely to react to current proposals for humanitarian corridors on political grounds, notwithstanding the needs of the population.

In light of these recent developments, mediation between humanitarians and partnering political and security actors is critical to determine the clear and distinct role of relief agendas in Syria. Humanitarian actors should be particularly wary that various parties might endeavor to use humanitarian organizations to further political aims. Additionally, while negotiating access, agencies should remain cognizant of the limitations of humanitarian truces, especially following the devastating experiences in Bosnia and Herzegovina, and the risks associated with establishing protected zones without a clear political will at the international level to ensure civilians’ protection.

Ultimately, protecting of the civilian population in Syria is the responsibility of the Syrian government, or, if required, the UN Security Council under Chapter VII of the UN Charter in light of the “Responsibility to Protect” doctrine. Considering the recent UN report alleging ongoing indiscriminate attacks against civilians ordered by the parties to the conflict, the parties’ consent to a humanitarian truce to provide assistance to civilians will be of limited value. Humanitarian organizations may consider entering into truce and/or corridor agreements only when the Security Council has established robust and credible mechanisms to enforce these arrangements. Despite their neutral character, the success of humanitarian truces, zones, or corridors will inevitably rely on the international community’s political will to take coercive action in protecting civilians in Syria.

Politicisation of aid in Somalia hinders humanitarian action - Aid Agencies

Anaïde Nahikian — Thu, 23 Feb 2012 11:00:34 +0000

Blog Type:

IHL in Action

In advance of the upcoming international London Conference on Somalia, humanitarian aid agencies have reportedly held their own conference, “Humanitarianism before Politicisation”, asserting that the needs of populations should be a top priority in addressing the crisis in Somalia. According to a representative of the Organisation of Islamic Cooperation (OIC), “the humanitarian agenda should be kept separate from the military and political agenda.” Aid agencies are criticising the integration of humanitarian agendas with political and military operations, claiming that such convergence prevents negotiation of access to the millions affected by famine and conflict, endangers funding, and draws humanitarian professionals into issues regarding anti-terror legislation, severely restricting their capacity to reach communities in dire need located in areas controlled by Al-Shabaab.

The integration of political, peacekeeping, and humanitarian objectives in crisis is a common strategy, particularly in view of rapidly changing conflicts and crises, the need for simultaneously stabilising a region while also attending to the immediate and basic needs of affected populations, and the collaborative efforts of humanitarian professionals in the field - from UN missions to international organizations, donors, NGOs, and local authorities. Humanitarian assistance, under international humanitarian law (IHL), must be provided in a neutral, impartial, and independent “humanitarian space”. However, many professionals believe that this “humanitarian space” may become undermined in the integration of agendas, by compromising the perceptions of neutrality by parties to the conflict, by impeding access to vulnerable populations, and by disrupting delivery of aid due to political constraints.

As the international community looks toward its next phases of engagement in Somalia, humanitarian agencies urge all parties to allow for effective delivery of aid without restrictions imposed by political considerations. In light of this, humanitarian professionals must find a consensus on how best to cooperate with their colleagues from the security and political sectors to further common efforts.

Blog Tags:

Somalia

Humanitarian Access

aid

politicization

Mali: Unreliable access and delayed donor mobilization threatens humanitarian assistance

Anaïde Nahikian — Tue, 21 Feb 2012 23:13:16 +0000

Blog Type:

IHL in Action

Aid workers are facing a complex humanitarian crisis in Northern Mali, as conflict, increased displacement, and food insecurity continue to worsen in the region. UNHCR has estimated that nearly 45,000 Malians have been displaced, due to violence in the north. The on-going security crisis is severely exacerbating food insecurity, according to Catholic Relief Services (CRS), and is hindering the access of humanitarian professionals to those populations in need. While limited emergency relief continues to be distributed, aid agencies aim to scale up their activities in the north, despite logistical constraints, such restrictions on access, vast distances, low population density, and irregular population movements. Currently, agencies are attempting to negotiate with all parties in the north in hopes of opening and maintaining secure humanitarian access.

This situation demonstrates the on-going challenge faced by humanitarian workers confronted with insecurity and restricted access in crisis zones. Under International Humanitarian Law (IHL), the core purpose of emergency relief is to assist the public authorities in fulfilling their obligation to provide life-saving assistance to the population. However, in the present case of Mali, organizations have expressed growing concern about their capacity to assist in this escalating crisis. According to CRS, “aid agency interventions are going to be insufficient and the government of Mali will need to step up its reaction.” Considering the current “no-go” areas in the north, continued negotiation must take place with authorities in order to grant secure access, particularly in light of the fact that increased insecurity is a key factor preventing expansion of humanitarian activities to those regions in need.

In Mali, as in other situations, humanitarian professionals have yet to reach a consensus on methods to guarantee access to designated “no-go” zones, while maintaining sufficient levels of security for their staff. It is reported that NGO Médecins du Monde recently pulled its operations, and other agencies, such as WFP, are working only through partnerships in the north, rather than through direct access. Considering the challenges of operating in such areas, humanitarian workers will need to work with local authorities to overcome logistical limitations, through the establishment of humanitarian corridors or other adequate arrangements.

Further hindering the delivery of assistance, it has been reported that donors have been slow to mobilize, particularly due to “mixed-messages” regarding the extent of this crisis. With donors’ increasing demands for clear data to determine programming, aid agencies face the dilemma of providing clear evidence in the midst of political instability, lack of access to populations, and rapid, unpredictable population flows. In view of this, daily assessments of need will be critical to (1) ensure that humanitarian operations are implemented wherever possible, and (2) to communicate with donors in “real time” regarding evolving needs of vulnerable populations.

Blog Tags:

mali

humanitarian

access

Ten “Rules of Engagement” for UN Intervention in Syria

Claude Bruderlein — Mon, 13 Feb 2012 20:39:24 +0000

Blog Type:

IHL in Action

As they continue to decide the terms of a potential United Nations intervention in Syria, UN Security Council members should consider ten core strategies that may contribute to the effectiveness and success of a UN mission to Syria. These “rules of engagement” are based on a critical review of professional experience from previous UN and NATO missions in Libya, Afghanistan, and Iraq, as reflected in policy literature. These “rules of engagement” could also provide important considerations for the design of future UN missions in other contexts as well. Each proposed “rule” is accompanied by a series of resources produced by HPCR as well as other relevant sources.

1. Fill the security gap as the primary goal of the intervention

The primary goal of a potential UN intervention in Syria is to stop the violence, impose a cease-fire on the parties, and disarm militias, with the purpose of ensuring the protection of the population and the maintenance of public infrastructure. As witnessed in previous missions, such an endeavor is particularly complex in a society that has lived under authoritarian rule for decades and is fragmented along ethnic lines. The displacement of the previous regime is likely to unleash further tensions and rivalries as factions attempt to fill the security and political gap. It is imperative that any UN-mandated peacekeeping forces enjoy primacy over the maintenance of law and order, as well as retain the authority to use force in self-defense and in defense of civilians. The military capabilities and experience of the peace operations members is of greater importance than their national origin. This mission should operate under a unified command structure, responding to a very capable and astute military leadership.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, The Crisis in Libya: Planning the International Response, April 5, 2011
Monica Duffy Toft, Ending Civil Wars: A Case for Rebel Victory?, International Security, Spring 2010, Vol. 34, No. 4, pp. 7-36
Simon Chesterman, "Leading from Behind": The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention after Libya, Ethics & International Affairs, Volume 25.3 (Fall 2011)

2. Clarify objectives

As demonstrated in previous negotiations, the text of UNSC resolutions is often the product of difficult negotiation, which privilege the lowest common denominator among UNSC members. These negotiations often result vague language that comes at a high cost in terms of clarity of objectives. And it is typically upon this lack of clarity of the objectives that resources are mobilized and strategies and tactics are developed. UNSC members are well advised to take the time and effort necessary to devise security and political objectives that are adapted to the situation in Syria and that are drafted in a way that provides clear ultimate goals, timelines, and sequences for UN action. While these terms can be potentially revised in light of developments in the field, they are likely to be critical to the mission in its first months.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Cote d'Ivoire: Assessing the International Response, May 12, 2011
Nils W. Metternich, Expecting Elections: Interventions, Ethnic Support, and the Duration of Civil Wars, Journal of Conflict Resolution. August 23, 2011
Edward C. Luck, The Responsibility to Protect: Growing Pains or Early Promise?, Ethics & International Affairs, Volume 24.4 (Winter 2010)

3. Establish an independent monitoring, reporting, and fact-finding mission to investigate violations of IHL and human rights

Syria lacks a legacy of transparency and credible information-sharing mechanisms. It will be critical in this context to ensure the collection, analysis, and inquiries on past, present, and future violations of international humanitarian law and human rights law by all parties concerned, including peace operations members. These efforts are critical to the establishment of a transparent and accountable process based on international standards of practice in monitoring and reporting. As the Syrian society prepares to seek justice and undertake processes for reconciliation, the ability of a UN mission to demonstrate transparent and accountable monitoring and reporting mechanisms will be a great asset.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Monitoring the Implementation of IHL: The Expanding Role of the Human Rights Council, November 18, 2010
Philip Alston, The Darfur Commission as a Model for Future Responses to Crisis Situations, Journal of International Criminal Justice, 2005
Theo Boutruche, Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice, Journal of Conflict & Security Law, 2011

4. Set the terms of a national justice and reconciliation process

The UNSC should consider setting the terms for the creation of a justice and reconciliation mechanism at the national level in order to gather information on past violations of human rights law and other grievances. Setting those terms could also provide a means to open the space for forward-looking dialogue on a political transition. This justice and reconciliation mechanism should, at a minimum, be empowered to collect evidence, interview witnesses, and develop dossiers, which may be transferred to a specially designated criminal court established under a hybrid system, such as in the case of Sierra Leone. Without a sufficient justice and reconciliation process, it is unlikely that the UN can provide enough grounds for a political transformation in light of the reported cases of abuse and discrimination.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Seeking Justice in the Wake of War, February 18, 2010

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Accountability for Violations of IHL in Counterinsurgency: The Case of Sri Lanka, February 24, 2011
Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Out with the old, in with the new: Challenges ahead for the new ICC Prosecutor, December 8, 2011
Sirkku K. Hellsten, Transitional Justice and Aid, Working Paper No. 2012/06, United Nations University, January 2012

5. Adopt a clear timeline for the rehabilitation of political institutions

Many past missions have stumbled in (re)establishing viable political institutions. The planning of these efforts suffered from being too vague and too hastily instituted, as well as from not sufficiently involving actors at the national and local level in their design. The UNSC should ensure that, from the text of the resolution onward, a timeline is adopted for the purpose of providing a clear horizon for the reestablishment of political authorities based on democratic values and respect for human rights.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, The Role of Humanitarian Actors in Constraining Violence and Fostering Peace: The Case of Sudan, December 16, 2010
Marta Foresti and Alina Rocha Menocal, Tricky transitions to democracy, ODI Podcasts, February 2, 2012
Jennifer Welsh, Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP, Ethics & International Affairs, Volume 25.3 (Fall 2011)

6. Ensure respect for humanitarian law and human rights by peace operations members

As noted above, a core goal of a potential UN intervention is to stop violence against civilians. In doing so, the UNSC should ensure that contributing troops are properly trained and informed about their legal obligations under IHL and human rights law. The UNSC should also ensure that contributing governments are committed and able to investigate alleged violations, enforce these rules, and provide remedies for victims. Experience has shown that violations of basic human rights occur even in the hands of the best-trained and equipped military forces.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Regulating the Conduct of Military Personnel in Peace Operations, January 26, 2012
Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Countries in Upheaval: Developing a Protection Framework in Situations Short of Armed Conflict, July 28, 2011
Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Challenges to the Application of IHL to Afghanistan, November 4, 2011

7. Respect and promote independent, neutral, and effective humanitarian action

Some UN missions — while attempting to increase the efficiency of the intervention and the coordination among humanitarian actors — have been tempted to use relief operations as a means to win the “hearts and minds” of the population toward the political objectives of the mission. This short-sighted strategy has, over time, endangered the core principles of neutrality and independence of humanitarian action in many situations. As with other emergency operations, coordinating and integrating humanitarian activities — in terms of security management, logistics, transport, and communications — are critical aspects of efficiency and efficacy. Yet, the perception of neutrality and impartiality is of great value, not only for the humanitarian organizations, but for the overall UN mission as well. Understanding that the welfare of the population is a priority, it is imperative for the UN mission’s legitimacy that humanitarian actors not be interfered with. By prioritizing the welfare of the population in times of emergency, the UN mission will foster political support from communities as it aims to create sustainable political processes.

Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Famine and War: A Critical Appraisal of the Challenges to Humanitarian Response in Somalia, October 11, 2011
Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, The Future of Humanitarianism in Afghanistan, January 20, 2011
Antonio Donini (team leader), Larissa Fast, Greg Hansen, Simon Harris, Larry Minear, Tasneem Mowjee, and Andrew Wilder, Humanitarian Agenda 2015: The State of the Humanitarian Enterprise, March 2008

8. Focus on maintaining public infrastructure

As seen in the cases of Iraq and Afghanistan, the legitimacy of the mission will rely partly on its ability to facilitate the restoration of public services in key sectors, such as health, water and sanitation, education, and power supply.. Efforts should be made to curtail, as much as possible, the need for emergency relief assistance. The UN should invest, where possible, in maintaining and rebuilding the capacity of public authorities to deliver essential services. Syria is a mid-level developing country that may not require emergency assistance beyond a few weeks following the reestablishment of public order. Restoring this capacity is of primary importance for both logistical and political reasons. In this context, the UN mission should avoid calling in major development agencies to undertake direct interventions in place of the the government. These programs, as demonstrated in previous missions, draw extensive human resources away from public authorities and increase the sense of the population that it has lost control over the process of transition. While agencies can provide technical support to ministries and municipalities, they will need to be patient as those entities are rebuilding their capacity and legitimacy within the communities.

ACF-France, The human right to water and sanitation in emergency situations: the legal framework and a guide to advocacy, February 2009
Marco Sassòli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, European Journal of International Law, Vol. 16, No. 4. 2005

9. Build on coping capabilities at the community level

Ultimately, a large part of the success of the UN mission will be in the hands of local communities and the extent to which they buy into the political transition. In this context, political, security, and development agendas should be geared toward supporting coping mechanisms at the community level to reinitiate economic development, trade, and communication with the outside world. The UN system still has a lot to learn from local NGOs on how to engage with communities, particularly dealing with local mediation efforts, community mobilization, human rights culture, and social development. The UNSC should consider mandating its mission to work closely with Syrian civil society, as well as international NGOs with expertise in peacebuilding at the community level, in order to jump start projects that can have an immediate impact on the perceptions and buy-in of the communities.

Theresa Stichick Betancourt and Kashif Tanveer Khan, The mental health of children affected by armed conflict: Protective processes and pathways to resilience, International Review of Psychiatry, 20(3), June 2008, pp. 317-28
Tom Mitchell and Katie Harris, Resilience: A risk management approach, ODI Background Notes, January 2012

10. Communicate and engage with local leaders

Many of the previous missions stumbled due to the absence of a consolidated leadership at the national level with which the missions could engage on political reforms. Attempts to import such leadership from the more educated and savvy diaspora has typically failed to mobilize the support of the population toward the transition process. However expedient such temptations are, a UN mission to Syria should be given the space and time to communicate and engage with local leaders and seek their contribution in defining the process, agenda, and timeline of political transition and social reconstruction. Such an approach promotes democratic values, and also helps to ensure that political forces from the diaspora, with limited stake into local economic and social development, are allowed to participate in the national reconciliation efforts yet not to dictate the terms of it. This type of engagement is necessarily time consuming, requires proper language and cultural skills, and is fraught with local dilemmas for which the UN cannot always provide much support or solutions. Yet, as the fundamental rehabilitation of a political system will take place at the community level, as demonstrated in other instances of UN intervention, communities should see themselves — and should be seen — as important partners of the UN in this process.

OECD (2011), International Engagement in Fragile States: Can’t we do better? OECD Publishing
Program on Humanitarian Policy and Conflict Research, Harvard University, Live Web Seminar Recording, Islamic Law and Protection of Civilians, June 17, 2009

Syria: Time to Reflect on Responsibility to Protect

Claude Bruderlein — Mon, 13 Feb 2012 14:41:23 +0000

Blog Type:

IHL in Action

Over the recent days, several calls have been made to apply the recently adopted doctrine of Responsibility to Protect (R2P) in the situation of Syria, in view of the mounting violence and death toll among civilians. According to a poll published by Reuters, a majority of the French population would back a UN military intervention in Syria. Russian and Chinese objections to UN intervention on the basis of the respect of state sovereignty has been severely criticized by Western powers and global public opinion in general.

This type of argument is far from being new. While the concept of R2P arose in the early 2000s out of the dramatic experience resulting from UN inaction in Rwanda and the indecisiveness of NATO in Srebrenica, there are still a number of political and professional questions associated to the implementation of such a norm. Many argue that R2P has not reached the level of an international legal rule, which therefore doesn’t set clear obligations for states, including Russia and China as members of the Security Council, regarding its implementation.

Rightly so, the Security Council adopted a resolution in 2005, subjecting coercive measures under R2P to the traditional rules pertaining to the veto of the organization. Since then, the doctrine has slowly lost some of its appeal, due to the inability of its protagonists to specify clear benchmarks that would trigger such interventions (i.e. what constitutes a genocide, crime against humanity, or war crime, justifying the use of force), and to define what type of measures could effectively prevent, mitigate, or prohibit these violations in the first place.

In view of the lack of consensus among professionals on when and how to intervene, as well as how to rebuild a stable society respectful of human rights after such an intervention, states have become increasingly nervous that R2P could be used on political grounds to interfere into the affairs of other states. While some denounce the potential politicization of the doctrine, others recognize that military interventions under R2P precisely need political mobilization without which no state would commit the required resources, particularly military, to stop atrocities. In other words, foreign policy goals, rather than systematic definitions, are likely to dictate military interventions. In such a case, there has been a clear tension between those who want to better define triggers, means, and methods of R2P, and those who want it to remain vague as a practical matter to mobilize support in times of crisis.

Ultimately, R2P may well become an accepted concept, paradoxically when it will be no longer required. By defining sovereignty as a responsibility, rather than a privilege, and by intervening in a preventive manner, rather than through military force, states will evidentially agree that a major failure of an international system based on human rights requires the collective use of force to re-establish international order. In this context, the Russian and Chinese veto, as frustrating and dramatic as it may be in the case of Syria, is more reflective of their perceptions of an international system based on human rights, than on the pros and cons of intervening in Syria.

For the time being, much more needs to be done in building a consensus on the means and methods of implementing R2P. In particular, much work needs to be invested in researching the military objectives and tactics of such operations, the role and responsibilities of humanitarian organizations, in establishing clear protocols to rebuild broken societies in line with human rights values and norms, and in prompting processes of reconciliation as a premise for sustainable peace. Therefore, denouncing the veto power of Russia and China will have real significance only when the protagonists of R2P will have a clear understanding of what needs to be put into the resolution in the first place.

Blog Tags:

Syria

R2P

Responsibility to Protect

IHL

Unreliable security and access jeopardize effective delivery of emergency relief in Somalia.

Claude Bruderlein — Fri, 10 Feb 2012 20:42:21 +0000

Blog Type:

IHL in Action

Following consistent blockade of aid delivery by local authorities in regions controlled by Al-Shabaab, the International Committee of the Red Cross (ICRC) announced that it has suspended all food and seed distributions to the areas until local authorities cooperate in maintaining secure and unobstructed access to populations in need. The current situation in Somalia has heightened on-going dilemmas of humanitarian access. According to UNOCHA, while the humanitarian need of populations should determine where relief efforts are directed, the prevailing security environment remains a deciding factor in the ability of professionals to operate. Humanitarian relief efforts require the assurance of a secure environment and unimpeded access in order to effectively deliver aid to affected populations. If the conditions for humanitarian assistance are undermined or impeded, aid is jeopardized.

Humanitarian organizations face a constant challenge as they implement their activities according to international humanitarian law in complex environments. Under IHL, humanitarian assistance is deemed to be independent, impartial, and neutral. Its core purpose is to support authorities in the fulfilment of their obligations to provide for the needs of the populations under their control. While there is a dilemma regarding the actual responsibilities of the Al-Shabaab movement to the Somali population under their control, Article 3 of the IVth Geneva Convention recognizes the Al-Shabaab movement as the practical counterpart to the ICRC in negotiating access. In particular, negotiation at the political level must take place in order to ensure that local and national authorities maintain adequate access to populations in need, recognizing the mandate of humanitarian organizations and their requirements in terms of operational independence.

There has yet to be a consensus on means and methods to seek the consent of local authorities in these circumstances, as well as the type of support expected from them in ensuring the security of staff and the delivery of assistance. Despite the need to operate under the principles of humanitarian action, aid workers must obtain guarantees of safety, for example through escort by local authorities and assurance of safe passage through controlled areas to reach populations in need. Ultimately, there are no clear prescriptions regarding the acceptable level of risks in view of the particular humanitarian benefits. Absence of a proper method to do a cost-benefit analysis complicates the elaboration of protocols of access.

As noted by UNOCHA, daily assessments of security in a given environment are critical to ensuring that humanitarian operations are implemented whenever and wherever possible. Considering the complexities of working in dangerous and highly complex environments, such as Somalia, humanitarian professionals must come to a consensus regarding means and methods to effectively deliver aid.

For more information, refer to:

ICRC News Release: "ICRC temporarily suspends distributions of food and seed"

IRIN News Article: "Somalia: ICRC suspends aid deliveries"

ICRC News Release: "ICRC remains fully committed to helping Somalis"

Blog Tags:

Somalia

ICRC

access

Humanitarian Principles

Humanitarian Access

Relief

ODI/Stimson Center Report: UN integrated missions present renewed challenges to humanitarian action

Claude Bruderlein — Tue, 31 Jan 2012 20:54:07 +0000

Blog Type:

IHL in Action

A recent report published by the UK Overseas Development Institute and the US Stimson Center assesses the impact of integrated missions on humanitarian response in conflict-affected regions. While integration of UN missions remains a polarizing issue, according to the report, such an approach is expected to remain an enduring operating procedure for the UN as a whole that will impact upon the doctrine and professional standards of humanitarian agencies for the years to come.

Through the integration of political, peacekeeping, and humanitarian objectives, the UN is mandated to support national and regional political processes aimed at promoting and maintaining peace and security, while also providing emergency relief assistance to populations in need. Humanitarian assistance, as recognized under international humanitarian law, must be provided in accordance with the principles of independence, neutrality, and impartiality. As a result, the amalgam of humanitarian activities with political and security agendas is often perceived among humanitarian professionals as a major threat to their modus operandi and the distinctiveness of the “humanitarian space”. Many believe that the integration of security, political, and humanitarian objectives may confuse parties to armed conflicts and endanger humanitarian access to vulnerable groups. Interestingly, the ODI/Stimson report observes that there is no concluding evidence that integrated missions have caused greater insecurity among humanitarian workers.

Moving forward, the ODI/Stimson report recommends the implementation of a pragmatic approach at the field level to ensure greater cooperation and clarity on the distinct missions of UN agencies operating in the same environment, particularly in light of differing perspectives regarding direct engagement with non-state armed groups. Given that pressure toward greater integration has become a common feature of UN mandates, humanitarian professionals must therefore reach a new consensus among themselves on how to cooperate with colleagues from the security and political mediation sectors on a case-by-case basis. With respect to the risks faced by humanitarian professionals working within an integrated mission framework, further research is required to assess the nature and level of associated risks to their operational access.

For further reading, refer to:

HPN: Humanitarian action in Afghanistan: an uphill battle

MSF Special Report: Afghanistan: A Return to Humanitarian Action

Guardian: UN urged to draw a line between humanitarian and military work

HPG/ODI/Stimson Center: The Search for Coherence: UN Integrated Missions and Humanitarian Space: Roundtable Summary

Oxfam International: OI Policy Compendium Note on UN Integrated Missions and Humanitarian Assistance

Blog Tags:

Humanitarian Access

ODI

Stimson

Integrated Missions

United Nations

International Islamic charities facing increased restrictions under counter-terrorism regulations in Israel, UK, and US for their activities in Gaza.

Claude Bruderlein — Mon, 30 Jan 2012 22:42:48 +0000

Blog Type:

IHL in Action

According to a recent article published on IRIN News, Islamic charities in Gaza are challenged by both Israeli bureaucracy and no-contact policies of Western donors toward Hamas, a branded terror organization under both US and UK laws, which controls the Gaza Strip.

Following the decision of US Supreme Court in the Holder vs. Humanitarian Law Project in June 2010, the US government, in particular USAID, has imposed additional restrictions on grantees working in the Gaza Strip, which limits or even prohibits contact with Hamas representatives. In addition, the Office for Foreign Asset Control at the US Department of the Treasury (OFAC), has been monitoring all potential ways in which funds can find their way toward Hamas, as a designated foreign terrorist organization. Such measures have in effect stifled interaction with the authorities in control of Gaza and have arguably hindered humanitarian programs in favor of vulnerable groups in the Strip.

Such situations appear to contravene with basic international humanitarian law, which calls for unimpeded access to civilian populations affected by the conflict. Israel and all the contracting parties to the Geneva Conventions are required to facilitate access to the population in need in the Gaza Strip.

Such tensions between emerging counter-terrorism regulations and traditional humanitarian law precepts have become apparent in the cases of Somalia, Afghanistan, and Pakistan over the coming years, essentially conditioning financial assistance to life-saving programs that satisfy growing security and political requirements.

The future of neutral and independent humanitarian assistance in regions controlled by armed groups designated as terrorist organizations will require common efforts to delineate a new balance between humanitarian imperative and national security priorities.

For more information on these deliberations, please visit www.hpcrresearch.org/research/criminalizing-humanitarian-engagement.

Blog Tags:

Gaza

Humanitarian Access

Islamic Charities

Palestinian

Sanctions

Yemen: Lack of data hampers emergency food aid, according to UNICEF

Claude Bruderlein — Sun, 29 Jan 2012 22:47:21 +0000

Blog Type:

IHL in Action

According to Geert Cappelaere, head of the UN Children’s Fund (UNICEF) in Yemen, donors are insisting to receive convincing evidence before proceeding with their assistance toward emergency food aid. Yet, for UNICEF, dealing with malnutrition is a priority. "Why do you want children to die first before you’re going to give any credibility to a disaster looming here in Yemen?” Said Cappelaere.

With the increasing pressure for accountability, aid agencies are often confronted with the programmatic dilemma of providing quantifiable evidence of malnutrition in situations where access to the field - and even more data, is made difficult by the circumstances of the conflict.

See: IRIN News
See: Malnutrition in Yemen: Developing an Urgent and Effective Response

Blog Tags:

Yemen

UNICEF

Humanitarian Access

Nutrition

Allegations of IHL Violations in Libya

Rob Grace — Fri, 27 Jan 2012 14:26:43 +0000

Blog Type:

IHL in Action

Last week, the Independent Civil Society (ICS) Fact-Finding Mission to Libya published a report documenting alleged violations of international law committed in Libya since the beginning of the 2011 uprising. The ICS mission was a coordinated effort of three Middle East-based organizations: the Palestinian Centre for Human Rights, the Arab Organization for Human Rights, and the International Legal Assistance Consortium. See here for the full report.

In many areas, the mission’s findings echo the initial findings of the Commission of Inquiry on Libya authorized by the United Nations Human Rights Council (UNHRC) in March 2011. (See here for the UNHRC commission’s original mandate, here for the commission’s initial report, here for the mandate extension authorized by the UNHRC last June, as well as here and here for summaries of interactive dialogues held last year between the commission and the UNHRC. The commission is still active in Libya and is due to produce a final report by March 2012.)

The ICS mission heard allegations that pro-Qaddafi forces were responsible for, among other violations, use of excessive force against peaceful protesters, mass arrests of political opponents, torture, indiscriminate attacks against civilians, and rape — all of which are also detailed in the UNHRC commission’s report. Additionally, the ICS report expresses concern about allegations regarding the Qaddafi killing, other revenge killings perpetrated by anti-Qaddafi forces, and mass arrests of dark skinned non-nationals (all of which the UNHRC commission has addressed as well, as noted here).

However, the ICS mission’s statements about the legality of NATO’s operations in Libya differ in certain respects from those of the UNHRC commission. While the UNHRC commission’s June 2011 report states, “[T]he Commission has not seen evidence to suggest that civilian areas have been intentionally targeted by NATO forces, nor that it has engaged in indiscriminate attacks on civilians” (see para. 235), the ICS report asserts that “the criteria and procedures used [by NATO] to classify civilian objects as military objects raises concerns and warrants effective further investigation.” Additionally, the ICS report states that “it appears that NATO participated in what could be classified as offensive actions,” thus potentially exceeding the legal authorization provided by United Nations Security Council (UNSC) in resolution 1973. (Decided under Chapter VII of the UN Charter, resolution 1973 authorized United Nations Member States “to take all necessary measures... to protect civilians and civilian populated areas under threat of attack” and to enforce a no-fly zone in Libya.)

Allegations about NATO’s actions in Libya have already drawn the attention of the International Criminal Court (ICC). In November 2011, the ICC informed the UNSC that “there are allegations of crimes committed by NATO forces [and] these allegations will be examined impartially and independently.” But press reports suggest that the ICC intends to base its decision about opening a formal investigation on the UNHRC commission’s final findings.

For additional resources on international legal aspects of the situation in Libya, see a previous HPCR blog entry on alleged extrajudicial killings committed by anti-Qaddafi forces, HPCR blog entries here and here on the complexities of the conflict’s legal classification, and a recording of HPCR’s live web seminar — “The Crisis in Libya: The International Response” — from April 2011.

Yemen’s Draft Amnesty Law

Rob Grace — Fri, 13 Jan 2012 21:57:44 +0000

Blog Type:

IHL in Action

Earlier this week, the Yemeni cabinet passed a draft amnesty law that, if adopted by Yemen’s parliament, would shield Yemen’s president, Ali Abdullah Saleh, and his aides, from prosecution. The draft law is part of the implementation of a deal brokered by the Gulf Cooperation Council (GCC) last November after months of anti-government protests and government crackdowns that began in January 2011. (For an interactive timeline of protests in Yemen, as well as governmental and international responses — and corresponding events in other countries affected by the Arab Spring — see here.) Under the deal — signed by Saleh and Yemeni opposition leaders — Saleh agreed to transfer power to his vice president, Abed Rabbo Mansour Hadi. Additionally, Saleh agreed to retain the title of president until presidential elections (now scheduled for February 2012), at which point he agreed he would step down in exchange for immunity.

A report published in September 2011 by the Office of the High Commissioner for Human Rights (OHCHR) — based on an OHCHR delegation visit to Yemen in summer 2011 — details the country’s human rights situation during the recent unrest. The delegation found “an overall situation where many Yemenis peacefully calling for greater freedoms, an end to corruption and respect for rule of law were met with excessive and disproportionate use of lethal force by the state.” Additionally, the report recommended that the Yemeni government:

Launch transparent and independent investigations, in line with relevant international standards, into credible allegations of serious human rights violations committed by the Government security forces, including, but not limited to, the killing of civilians, excessive use of force against civilians, arbitrary detention, and torture and ill treatment; ensure that perpetrators are held accountable.

Partly because Yemen is party to eight international human rights treaties (as the OHCHR report notes), Navi Pillay, the United Nations High Commissioner for Human Rights, stated that the amnesty “would be in violation of Yemen’s international human rights obligations.” (NGOs such as Amnesty International and Human Rights Watch also called on Yemen’s parliament to reject the draft law — see here and here.) As Amnesty International notes, under these treaties, “Yemen is obliged to investigate and prosecute anyone suspected of such crimes where there is sufficient admissible evidence.”

As noted in this article authored by Yasmin Naqvi for the International Review of the Red Cross in 2003, the notion that domestic amnesty cannot fully shield a violator of international law from prosecution dates back at least to the post-World War I era. The Commission on the Responsibility of the Authors of the War and on Enforcement and Penalties — formed in 1919 to determine who was responsible for World War I — concluded that “no trial or sentence by a court of the enemy country shall bar trial and sentence by the tribunal or by a national court belonging to one of the Allied or Associated States.” (See here for the Commission’s final report.)

In modern times, this area of law remains complex. An “express customary prohibition of amnesty has not yet crystallized,” as noted by Kate Allan in this article published by the Denver Journal of International Law and Policy. But, Allan continues, “There is support for customary and treaty based duties to prosecute pursuant to the Geneva Conventions (GCs), and jus cogens norms including torture, genocide.” For example, the International Committee of the Red Cross (ICRC) has articulated as a norm of customary international law in non-international armed conflicts that “the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.”

Additionally, according to the Rome Statute, a case is inadmissible to the International Criminal Court (ICC) if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” or if “[t]he case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute” (see Article 17 of the Rome Statute). But, Allan notes, the question of whether amnesties are permissible under Article 17 remains unresolved.

Fact-finding on Syria

Rob Grace — Fri, 16 Dec 2011 20:52:13 +0000

Blog Type:

IHL in Action

Earlier this week, Navi Pillay, the United Nations High Commissioner for Human Rights, briefed the United Nations Security Council (UNSC) on the situation in Syria, and afterwards, gave a statement in which she condemned the Syrian government’s crackdown, warned that the situation could escalate to a civil war, and called on the UNSC to refer the matter to the International Criminal Court (ICC). (Click here to see video of her statement.) The main obstacles to UNSC action are Russia and China, both of which earlier this year vetoed a UNSC resolution condemning Syria. And though Russia has reportedly shifted its position and proposed its own condemnation resolution, Russia remains reluctant to support stricter measures such as sanctions or support an ICC referral.

The Syrian government’s refusal to grant access to its territory has significantly impeded fact-finding efforts. As noted by the recent Report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Syrian Arab Republic — mandated earlier this year by the United Nations Human Rights Council (UNHRC) to investigate human rights violations in Syria — “[t]he failure of the Government of the Syrian Arab Republic to cooperate with OHCHR with regard to access to the country significantly hampered the work of the mission.” Thus, according to the report, the mission, among other measures, “conducted three field investigations outside the Syrian Arab Republic,” “studied information received through written communications,” and “examined more than 50 videos and numerous photographic images relating to apparent human rights violations.”

Additionally, the Arab League is still in negotiations with Syria over a proposal to send up to 500 Arab League observers into the country to monitor Syrian compliance with the Arab League’s peace plan, formulated last month as part of the Arab League’s effort to end the Syrian government’s crackdown.

Still, many valuable resources are available to track ongoing developments in Syria. Amnesty International’s “Eyes on Syria” page compiles incidents of citizens who have died while in Syrian government custody, stories of Syrian government harassment of expatriates around the world, and actions taken by activists to try to improve the human rights situation in Syria. And the International Coalition for the Responsibility to Protect has compiled links tracking the international community’s response to the unfolding crisis. Additionally, a recent Human Rights Watch report — ‘By All Means Necessary!’: Individual and Command Responsibility for Crimes against Humanity in Syria — details attacks against Syrian citizens, as reported by over 60 Syrian military and intelligence agency defectors.

The International Community’s Struggle Against the Lord’s Resistance Army

Rob Grace — Thu, 01 Dec 2011 14:31:48 +0000

Blog Type:

IHL in Action

In the past few weeks, various entities of the United Nations examined the threat to regional security in Central Africa posed by the Lord’s Resistance Army (LRA). The UN Secretary-General released reports on the LRA and on the work of the UN regional Office for Central Africa (UNOCA) (the latter was inaugurated earlier this year with a mandate, among other responsibilities, to coordinate the UN’s response to the LRA). Additionally, Abou Moussa, head of UNOCA, discussed the issue with the UN Security Council (UNSC), and, through a statement made by the UNSC president, the UNSC condemned the LRA’s ongoing attacks and requested the Secretary-General to produce another report on LRA developments before May 2012.

The LRA was formed in the late 1980s in northern Uganda and, as the Secretary-General’s report notes, now has fewer than five hundred combatants according to recent estimates. However, the Secretary-General’s report, as well as other UN reports (in particular, see relevant reports of the Secretary-General as part of the 1612 Monitoring and Reporting Mechanism here, here, here, and here, as well as reports published by various NGOs here, here, and here) detail the devastating effect the armed group has had on civilians in Central Africa. As the Secretary-General’s report states:

Between January and August 2011, the United Nations Office for the Coordination of Humanitarian Affairs received reports of 254 attacks by LRA on civilians in the Democratic Republic of the Congo, South Sudan and the Central African Republic, resulting in 126 deaths and 368 persons abducted. An estimated 440,000 persons are currently internally displaced or living as refugees owing to LRA attacks; 335,000 are displaced in the Democratic Republic of the Congo alone.

For statistical analyses of the victims of the LRA’s forced conscription activities, see two articles written by Phuong N. Pham, Patrick Vinck, and Eric Stover — one published by Human Rights Quarterly in 2008 and another published by BMC Psychiatry in 2009.

The Secretary-General’s report calls on donor states to increase support for the UN presence in the region and encourages the African Union to continue its efforts to implement a regional strategy to combat the LRA, appoint an African Union Special Envoy for the LRA-affected areas, and operationalize a regional intervention force. An International Crisis Group report published last month echoes these concerns and recommendations, and further details the international community’s struggle against the LRA. For ongoing updates on the LRA, see LRA Crisis Tracker, which aggregates LRA-related news and analyses.

UNSC Debates Protection of Civilians in Armed Conflict

Rob Grace — Thu, 10 Nov 2011 18:59:25 +0000

Blog Type:

IHL in Action

Earlier this week, Portugal, which currently holds the presidency of the UN Security Council (UNSC), convened the UNSC’s open debate on the protection of civilians in armed conflict. Regular UNSC engagement on this issue began in 1999, when the UNSC requested that the UN Secretary-General draft a report to recommend:

…ways the Council, acting within its sphere of responsibility, could improve the physical and legal protection of civilians in situations of armed conflict. The report should also identify contributions the Council could make towards effective implementation of existing humanitarian law. The report should examine whether there are any significant gaps in existing legal norms, through the review of recent reports in this regard.

The UN Secretary-General has since produced biennial reports for the UNSC addressing the issue, and the UNSC regularly engages in open debate on the topic. (For links to the biennial UN Secretary-General reports and relevant UNSC resolutions, see here. For summaries of UNSC open debates on protecting civilians in armed conflict, see here.)

In this week’s open debate, UN Secretary-General Ban Ki Moon reiterated five core challenges he has expressed in previous reports: 1) enhancing compliance with international humanitarian law and international human rights law (including UNSC measures to initiate commissions of inquiry and refer relevant matters to the International Criminal Court); 2) engaging more effectively with non-state armed groups to enhance compliance; 3) properly training and resourcing peacekeeping missions to enhance the protection of civilians; 4) enhancing humanitarian access to affected populations; and 5) enhancing accountability, including consideration of the recommendations of last week’s Office for the Coordination of Humanitarian Affairs (OCHA) workshop (see here for information on the workshop).

Summaries of additional remarks from this week’s debate — including statements from Navanethem Pillay, High Commissioner of Human Rights; Catherine Bragg, Assistant-Secretary-General for Humanitarian Affairs; and Philip Spoerri, Director of International Law and Cooperation at the International Committee of the Red Cross — can be found here.

Blog Tags:

UNSC

ICG on Colombia’s Unstable Border Regions

Rob Grace — Fri, 04 Nov 2011 13:55:25 +0000

Blog Type:

IHL in Action

This week, the International Crisis Group (ICG) released a report examining the effect of Colombia’s armed conflict on the country’s unstable border regions. As the report notes:

For fifteen years, porous borders that offer strategic advantages to illegal armed groups and facilitate extensive illicit economies have exposed them to an intense armed conflict that is made worse by the widespread absence of public institutions. The warfare triggered a humanitarian emergency and worsened relations especially with Ecuador and Venezuela, the most affected neighbours.

The report asserts that despite some recent policies implemented by Colombian president Juan Manuel Santos — aimed at improving relations with Ecuador and Venezuela and increasing economic and social development in border regions — the Colombian government “must pay more attention to the humanitarian challenges and boost measures to build civilian state capacity in its border zones.” At the same time, Ecuador and Venezuela “need to do more to tackle drug trafficking and organised crime and to comply better with international obligations to protect refugees.”

The report also highlights the prevalence of sexual violence in the armed conflict. On the Ecuadorian border, “[v]iolence against women is rampant” and “[a]rmed actors, including the military, regularly abuse them sexually.” On the Venezuelan border, “sexual abuse of girls is common, by both illegal groups and members of the security forces.” An Amnesty International report released in September provides further in-depth documentation and analysis of sexual violence in Colombia, as does the 2009 United Nations Secretary-General’s 1612 Monitoring and Reporting Mechanism report.

ICG also calls on all parties of the conflict to abide by international humanitarian law (IHL), arguing that “[t]he legitimacy of [Colombian] security force action has suffered from human rights and IHL violations by the military and police,” and “[i]f troops do not respect such rules, improving relations with the local population and jointly constructing functioning local governance will remain uphill battles.” A recent analysis concerning the new operational law of the Colombian armed forces and its relationship with IHL and human rights law is available in Constantin von der Groeben’s article published earlier this year in the Journal of Conflict and Security Law.

Ultimately, ICG concludes that an assertive strategy geared toward stabilizing and developing Colombia’s border regions might be the key to ending the armed conflict:

Colombia will not see an end to violence without negotiating a settlement with the guerrillas. Given the importance of the border region to wider conflict dynamics, laying the foundations for sustainable development there is the best bet to set the stage for such negotiations and thus lasting peace.

Read the full report here.

Blog Tags:

Sexual Violence

Colombia

1612

HPCR & IRRC Live Web Seminar: Challenges to the Application of IHL to Afghanistan

Dustin Lewis — Mon, 31 Oct 2011 16:57:50 +0000

Blog Type:

IHL in Action

On Friday, November 4th, from 9:30 a.m. till 11:00 a.m. (Boston/Eastern Time; check your local time here), HPCR and the International Review of the Red Cross will co-present a Live Web Seminar on "Challenges to the Application of IHL to Afghanistan." The LWS will be co-moderated by Claude Bruderlein (Director of HPCR), Naz Modirzadeh (Associate Director of HPCR), and Vincent Bernard (Editor of the IRRC). As indicated in the event's description,

The conflict in Afghanistan is in its tenth year, and the situation continues to challenge protection efforts under international humanitarian law (IHL). While the civilian population has borne the effects of decades of conflict and instability, none of the previous conflicts have raised such direct questions regarding means and methods of implementing IHL.

This live web seminar will address a number of issues related to protection, including:

The role of IHL in regulating hostilities, particularly issues related to targeting, status of individuals, and the question of the geography of armed conflict.

The current nature of detention operations in Afghanistan, and the legal framework(s) by which these operations are regulated.

The state of humanitarian operations, the role of humanitarian actors such as the ICRC, and the challenges of access to vulnerable populations.

Pre-event registration (free) is required. Currently, panelists slated to participate include Gabor Rona (Human Rights First); Markus Cott (ICRC); Matthew Hover (U.S. Naval War College); and Fiona Terry (Independent Researcher). For more on this event, including background materials, and for a recording of the event after November 4th, check out this Live Web Seminar's page.

Blog Tags:

Afghanistan

ICRC

IRRC

Reports of "Extrajudicial Killings" in Libya

Rob Grace — Fri, 28 Oct 2011 17:10:43 +0000

Blog Type:

IHL in Action

After last week’s reported capture and subsequent killing of Muammar Qaddafi, elements of the United Nations expressed various levels of concern at the incident. Rupert Colville, spokesman for the UN High Commissioner for Human Rights, called for a probe into the killing. Philippe Kirsch — who leads the International Commission of Inquiry on Libya, which is mandated by the UN Human Rights Council to investigate violations of international human rights law in the country — called on the National Transitional Council (NTC) to ensure that detainees’ human rights are respected. And Christof Heyns, the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, stated that the killing might constitute a war crime (watch an interview with him here).

Additionally, Jurist reports that Qaddafi’s family intends to file a complaint against NATO about the killing with the International Criminal Court (ICC). (Qaddafi’s daughter instituted legal proceedings earlier this year in Belgium over a NATO bombing that killed several of her family members, but Belgian prosecutors declined to prosecute, citing jurisdictional reasons.)

The NTC launched an investigation into the Qaddafi killing. According to the NTC’s deputy chief, Abdel Hafiz Ghoga:

We have issued a code of ethics in handling of prisoners of war. I am sure that was an individual act and not an act of revolutionaries or the national army. Whoever is responsible for that [Gaddafi's killing] will be judged and given a fair trial.

But the Qaddafi killing is just one of many reported incidents contributing to the international community’s growing concern over the NTC’s purported record on “extrajudicial killings.” For instance, the International Commission of Inquiry on Libya’s report released in June indicated, among other findings, that the “Commission received several accounts of attacks on migrant workers carried out by armed opposition groups.” The report called on the NTC “in particular to investigate [human rights and IHL violations] with a view to prosecuting cases of extrajudicial, summary or arbitrary executions and torture with full respect of judicial guarantees….”

Additionally, in September, Amnesty International published a report, “The Battle for Libya – Killings, Disappearances, and Torture,” that examined purported “extrajudicial killings” committed by armed opposition fighters in Libya. Later that month, after news reports indicated that rebel forces might be guilty of committing summary executions, the NTC pledged that their detainees “have the right to an appropriate trial before an ordinary judge and according to international law.” And earlier this week, Human Rights Watch announced the discovery of 53 bodies in Sirte that were apparently victims of a mass execution committed by anti-Qaddafi fighters.

For some primers on the international legal standards proscribing extrajudicial killings, see Philip Alston’s 2010 “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” as well as HPCR’s policy brief on targeted killing.

Blog Tags:

Libya

ICC

extrajudicial killing

Qaddafi

Recent HPG/ODI and ICRC reports concerning counterterrorism measures and humanitarian action

Dustin Lewis — Thu, 27 Oct 2011 17:16:13 +0000

Blog Type:

IHL in Action

"The application of counter-terrorism legislation and other measures to humanitarian operations is challenging principled humanitarian action." So conclude Sara Pantuliano, Kate Mackintosh, and Samir Elhawary (with Victoria Metcalfe) in an important policy brief published last week by the Humanitarian Policy Group of the Overseas Development Institute. The authors outline, among other things, how international and domestic counterterrorism laws and other measures "have increased operating costs, slowed down administrative functions and operational response, curtailed funding and undermined humanitarian partnerships." Partly through case studies on Somalia and Gaza, the authors portray key concerns that counterterrorism measures present to individuals involved in humanitarian assistance in these situations. You can read more about the policy brief in a Guardian article, and you can watch a panel discussion on the brief online.

Also this month, the International Committee of the Red Cross published its third report on "International Humanitarian Law (IHL) and the Challenges of Contemporary Armed Conflicts." (The previous two were published in 2003 and 2007, respectively.) According to the ICRC, "These reports aim to provide an overview of some of the challenges posed by contemporary armed conflicts for IHL, to generate broader reflection on those challenges and to outline ongoing or prospective ICRC action, positions and interest." In this year's report, the ICRC identified "The Conflation of IHL and the Legal Framework Governing Terrorism" as one of the challenges. As with the HPG policy brief (and with a February 2011 Working Paper by HPCR), the ICRC's report identifies a range of adverse impacts counterterrorism measures may have on obtaining and delivering humanitarian assistance in situations of armed conflict. For instance, the ICRC's report states that:

The prohibition in criminal legislation of unqualified acts of "material support", "services" and "assistance to” or "association with” terrorist organizations could thus in practice result in the criminalization of the core activities of humanitarian organizations and their personnel aimed at meeting the needs of victims of armed conflicts and situations of violence below that threshold. These could include: visits and material assistance to detainees suspected of or condemned for being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; assistance to provide for the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities to internally displaced persons, where individuals associated with terrorism may be among the beneficiaries.

In addition, the criminalization based on broad definitions of "support or services” to ["]terrorism" may have the effect of governments including “anti-terrorist” funding conditions or restrictions in donor agreements. The relevant funding clauses may impede the provision of humanitarian services such as those mentioned above and would thus be de facto contrary to the mandates and/or missions of humanitarian organizations.

Indeed, as further emphasized in the report, counterterrorism measures criminalizing such forms of "support" to or "association" with "terrorist organizations" raise fundamental concerns for the ICRC: "At a basic level, the potential criminalization of humanitarian engagement with organized armed groups designated as 'terrorist organizations' may be said to reflect a nonacceptance of the notion of neutral and independent humanitarian action, an approach which the ICRC strives to promote in its operational work in the field."

Impartiality and the Bahrain Commission

Rob Grace — Mon, 29 Aug 2011 19:14:17 +0000

Blog Type:

IHL in Action

The Bahrain Independent Commission of Inquiry (BICI) — created by Bahraini royal decree earlier this year to investigate the government’s crackdown on protesters — closed its office two weeks ago after a mob reportedly infiltrated the building and assaulted staff members.

The incident was the culmination of a dispute that began after a Reuters article led many Bahrainis to question the commission’s impartiality. According to the article, M. Cherif Bassiouni, BICI’s chairman, said of the investigation:

It leads me to believe that on [the Interior Minister’s] part there was never a policy of excessive use of force or torture...that doesn't mean it didn't happen. I think it was a case of people at the lower level acting, and there not being an effective chain of communication, control.

A heated exchange of public letters resulted between the Bahrain Center for Human Rights — which accused Bassiouni of “espous[ing] the view of the political establishment whilst paying lip-service to the concept of a fair and independent enquiry” — and Bassiouni, who defended the commission’s work, legitimacy, and impartiality.

The episode demonstrates the importance of impartiality and perceptions of impartiality for investigative commissions. As President Clinton wrote of the Sharm el-Sheikh Fact-Finding Committee, created during the Second Intifada, “the Committee should ensure that it is, and is perceived to be, fair and impartial.” And as Bassiouni wrote in 2001:

One of the fundamental struggles of civilization is to put an end to these crimes. One way of accomplishing this goal is to put an end to impunity. But to do so we must ensure that the processes of discovering truth and achieving justice, albeit relative, is not politically compromised as to its impartiality, fairness, and effectiveness.

The BICI mandate (which you can download here) also stresses the importance of the commission’s independence, stating:

The Commission is wholly independent of the Government of Bahrain or of any other government, and the members of the Commission are acting in their personal capacity and do not represent any government, international organization, public official or any economic or political interest.

But the history of investigative commissions shows that they sometimes fall prey to perceived, and actual, partiality issues. Priscilla Hayner recounts several such stories in her book, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, and in a 1994 Human Rights Quarterly article from which she adapted the book. As Hayner notes, Idi Amin created a commission in 1974 to investigate disappearances perpetrated by his government but never published the report and adopted none of its recommendations. The African National Congress (ANC) created a commission in 1992 to investigate its own detention policies but placed two ANC members on the commission, leading some to question the commission’s independence. And the 1991 Truth Commission on El Salvador attempted to avoid accusations of partiality by staffing its commission with people who had no experience working on El Salvadoran human rights issues, thus facing critiques of its effectiveness.

The Bahraini government sought to address the issue by staffing the commission with, as the BICI mandate states,“five eminent and internationally renowned members, whose experience and reputation worldwide is well established.” But the events of the past month demonstrate that commission member selection is just one of many factors that shape public perceptions of a commission’s impartiality.

Nevertheless, BICI’s work continues. And Al Wefaq — the largest Bahraini opposition party, which walked out of the government-sponsored national dialogue last month — condemned the attack on BICI’s office and expressed support for the commission.

Protecting medical personnel, facilities, activities, and transports in armed conflict

Dustin Lewis — Fri, 19 Aug 2011 21:24:04 +0000

Blog Type:

IHL in Action

A fundamental general principle of international humanitarian law—applicable in all armed conflicts—is that the wounded, sick, and shipwrecked shall be collected and cared for. To give effect to that rule, all parties to all armed conflicts must respect and protect medical personnel, facilities, activities, and transports. Yet sadly, as documented and discussed in two recent publications, many parties to armed conflict are violating those rules, with devastating results.

In a 2010 article titled "Responsibility for protection of medical workers and facilities in armed conﬂict" in The Lancet, Leonard S. Rubenstein and Melanie D. Bittle concluded that:

Attacks on health workers and facilities have become a feature of modern war; they are not simply committed by rogue countries or forces. During the past 20 years, violations have been documented in varied conflicts—eg, in Kosovo, Nepal, Israel, the occupied Palestinian territory, Iraq, and Colombia—and shown extensive violence against medical functions. Such actions cause death and injury, and exacerbate the suffering of populations that have been devastated by war and deprived of medical workers and facilities. For far too long, violations have not been consistently or adequately reported, and are often perceived to be isolated incidents, resulting in little action. When violations are reported, protests are intermittent at best and perpetrators are rarely held accountable.

Echoing those findings, the International Committee of the Red Cross earlier this month published a report titled "Health Care in Danger: Making the Case." Surveying a range of contemporary conflicts, the report details numerous violations, and provides useful summaries of the applicable legal standards. At the end of the report, the ICRC enumerates 10 initiatives for which it is seeking support in order to increase awareness about the issue and to spur action to improve respect and protection:

1. Building a community of concern

2. Regular and methodical information gathering

3. Consolidating and improving field practices

4. Ensuring physical protection

5. Facilitating safer access for Red cross and Red crescent staff and volunteers

6. Engaging with States

7. Engaging with national armed forces

8. Engaging with non-State armed groups

9. Engaging with professional health-care

10. Encouraging interest in academic circles

Counterterrorism Regulations and Humanitarian Access to the Famine in Somalia

Dustin Lewis — Wed, 10 Aug 2011 19:05:27 +0000

Blog Type:

IHL in Action

The historic drought and the resulting 12.4 million people in need of urgent humanitarian assistance in the Horn of Africa received increased press attention in late July upon the announcement of a famine in two areas of Somalia. (Since then, a famine has been said to exist in three more areas of Somalia.) As detailed in congressional testimony last week, obtaining access to deliver humanitarian aid to those most in need in Somalia is extraordinarily challenging, not least because of the rampant insecurity stemming from the ongoing armed conflict between the UN-backed Transitional Federal Government (TFG) and armed opposition groups. One such group in particular, the Shabaab, controls a large portion of territory in southern Somalia, and has imposed “taxes” or “access fees" on, expelled, and killed members of humanitarian organizations in recent years.

Considering the Shabaab to be a terrorist organization, a range of states has enacted domestic laws to curb support for the group, even if such "support" is indirect and provided solely with an aim of alleviating the suffering of civilians in need. At the United Nations, the Shabaab and some of its members have been listed in relation to the Somalia and Eritrea sanctions regime. In the United States, the Shabaab is listed as a Foreign Terrorist Organization (meaning that providing “material support or resources” to the organization is a federal crime punishable by up to 15 years in prison), and the group and some of its members are also listed as Specially Designated Nationals (meaning that U.S. persons and entities dealing with them must comply with relevant Treasury Department regulations or face criminal or civil penalties up to 20 years in prison). This web of laws and policies regulating engagement with the Shabaab presents a challenge to humanitarian organizations seeking access to those most in need in areas under the group’s de facto control.

Last week, press headlines declared “U.S. eases aid restrictions amid Somalia famine” and “State department reassures groups aiding Somalia in food crises.” Yet important restrictions, which may have eluded reporters, remain in place. The Office of Foreign Assets Control (OFAC) issued a document entitled “Frequently Asked Questions Regarding Private Relief Efforts in Somalia,” which read in part:

3. What if, in delivering humanitarian assistance, my organization unintentionally provides food or medicine to members of al-Shabaab?

Due to the dangerous and highly unstable environment combined with urgent humanitarian needs in south and central Somalia, some food and/or medicine delivered in these areas may end up in the hands of al-Shabaab members. Such incidental benefits are not a focus for OFAC sanctions enforcement.

The legal significance of this new apparent policy guidance is far from clear, including to what extent being a "focus" or not for OFAC sanctions enforcement is legally relevant. In any event, to date this publicly available guidance appears to apply only to the State Department and USAID, as well as their grantees and contractors, and would therefore appear not to apply to humanitarian organizations that are not State Department or USAID contractors or grantees, such as many European or other privately funded organizations. The extent, if any, to which general or specific waivers (which are allowed under the regulations) will be issued to the full range of humanitarian organizations seeking to provide humanitarian relief in areas under the Shabaab’s de facto control remains difficult to discern from publicly available information.

Perhaps most importantly in this context, the material-support-or-resources statute, which makes it a crime punishable by up to 15 years in prison to provide “any property, tangible or intangible, or service (…) except medicine or religious materials” to the Shabaab, remains fully in force.

Complicating the picture further is the limited humanitarian exemption contained in relevant Security Council resolutions decided under Chapter VII of the UN Charter, which UN member states must carry out. In Resolution 1916 (2010), the Council:

5. Decides that for a period of twelve months from the date of this resolution, and without prejudice to humanitarian assistance programmes conducted elsewhere, the obligations imposed on Member States in paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners, and decides to review the effects of this paragraph every 120 days based on all available information, including the report of the Humanitarian Aid Coordinator submitted under paragraph 11 below;

The Security Council extended the carve-out through March 17, 2012 in Resolution 1972 (2011). The Council’s limited humanitarian exemption seems difficult to square with certain U.S. domestic counterterrorism laws. (For whatever reason, at the time of this writing the OFAC Somalia sanctions website, which indicates “What laws, rules and regulations provide the legal framework for the sanctions” and which lists under that section various Security Council resolutions, does not list those Security Council resolutions containing the limited humanitarian exemption.)

Understanding Sexual Violence in the Democratic Republic of Congo

Rob Grace — Tue, 28 Jun 2011 16:17:41 +0000

Blog Type:

IHL in Action

After reports surfaced last week about recent rapes in the Democratic Republic of Congo (DRC), a UN spokesman announced that the UN Organization Stabilization Mission in the DRC (MONUSCO) would send a team to investigate.

MONUSCO, as well as various other UN bodies, including the UN Human Rights Council (UNHRC), and its predecessor, the UN Commission on Human Rights (UNCHR), have been engaged in monitoring and reporting activities in the DRC for decades. Last year, the UN High Commissioner for Human Rights published a mapping report documenting violations of human rights and international humanitarian law committed on DRC territory from 1993 to 2003. Yet a full understanding of why such violence occurs remains elusive.

Two papers published in the past year offer a glimpse into the complexities of understanding and contextualizing the subject. The Complexity of Violence, written by Maria Eriksson Baaz and Maria Stern and published by the Swedish International Development Cooperation Agency (Sida) in cooperation with Nordiska Afrikainstitutet, argues that examining sexual violence in isolation from other forms of violence hinders the ability to develop effective policy responses. The paper also argues for looking beyond the “rape as a weapon of war” narrative, for as the authors note, “high levels of SGBV [sexual and gender based violence] have also existed in contexts and times of relative peace.”

In a different vein, Increasing Security in DR Congo: Gender-Responsive Strategies for Combating Sexual Violence, written by Rosan Smits and Serena Cruz and published earlier this month by the Clingendael Conflict Research Unit, asserts that policymakers can better understand sexual violence by more holistically examining the role gender plays in society. The paper argues:

Sexual violence in the DRC is gendered. Not only is this violence gendered in how it is performed, but also in how it can be fought against. Prevailing over gender related violence means dismantling the ongoing tensions between men and women related to prescribed gender norms, roles, and identities. In doing so, it is possible to achieve a win-win environment. This means working towards methods that not only counter these tensions, but also support the development of beneficial gender norms, roles, and identities of men and women in a (post-) war DRC.

The “gender” lens is made more complex by the fact that some perpetrators are women and some victims are men (as Dustin Lewis noted in an earlier post). For more information on policy response challenges, see an earlier “IHL in Action” post on the UN Listing Mechanism, a PBS podcast on the subject, analyses in the recent issue of the International Review of the Red Cross focusing on gender and armed conflict, and resources at the “Sexual Violence in Conflict Settings” webpage of the Sexual Violence Research Initiative of the Global Forum for Health Research.

Amnesty International Report on Côte d'Ivoire

Dustin Lewis — Fri, 27 May 2011 18:50:09 +0000

Blog Type:

IHL in Action

This week, Amnesty International issued a report on Côte d'Ivoire, alleging violations of international human rights law and international humanitarian law during the period of post-election violence. The report further alleges that the United Nations Operation in Côte d'Ivoire (UNOCI) failed to protect civilians, especially regarding massacres in the Duékoué region, to which a U.N. human rights officer in Abidjan responded.

On April 12, the President of the UN Human Rights Council appointed three experts to an International Commission of Inquiry with a mandate "to investigate the facts and circumstances surrounding the allegations of serious abuses and violations of human rights committed in Côte d’Ivoire following the presidential election of 28 November 2010, in order to identify those responsible fur such acts and bring them to justice." In addition, the situation in Côte d'Ivoire is under preliminary examination by the Office of the Prosecutor of the International Criminal Court. More information and analysis about the situation in the Côte d'Ivoire is available in the recording (available in audio, audio-video, and iTunes formats) of HPCR's early May Live Web Seminar, as well as a p ost-event video interview with one of the expert panelists.

Report of the Panel of Experts on Sri Lanka

Dustin Lewis — Fri, 20 May 2011 14:04:48 +0000

Blog Type:

IHL in Action

Late last month (as flagged by Marko Milanovic), the Panel of Experts appointed by the UN Secretary-General to “advise him on the implementation of the joint commitment included in the statement issued by the President of Sri Lanka and the Secretary-General” made its 31 March 2011 report publicly available. According to the report, the Panel of Experts—composed of Marzuki Darusman (Chair), Steven Ratner, and Yasmin Sooka—was mandated “to advise the Secretary-General regarding the modalities, applicable international standards and comparative experience relevant to an accountability process, having regard to the nature and scope of alleged violations of international humanitarian and human rights law during the final stages of the armed conflict in Sri Lanka.” One of the Panel’s recommendations is that,

The Secretary-General should immediately proceed to establish an independent international mechanism, whose mandate should include the following concurrent functions:

(i) Monitor and assess the extent to which the Government of Sri Lanka is carrying out an effective domestic accountability process, including genuine investigations of the alleged violations, and periodically advise the Secretary-General on its findings;

(ii) Conduct investigations independently into the alleged violations, having regard to genuine and effective domestic investigations; and

(iii) Collect and safeguard for appropriate future use information provided to it, which is relevant to accountability for the final stages of the war, including the information gathered by the Panel and other bodies in the United Nations system.

As I briefly discussed last fall, investigating alleged violations of international law during armed conflict raises a range of practical and normative issues. In the most recent volume of the Journal of Conflict and Security Law, Théo Boutruche, who served on the EU body investigating the conflict between Georgia and Russia, assesses some of those issues.

Additional information and analysis on these and related topics is available at the webpages for HPCR’s Live Web Seminars on “Accountability for Violations of IHL in Counterinsurgency: The Case of Sri Lanka,” "Monitoring the Implementation of IHL: The Expanding Role of the Human Rights Council,” and “Challenges of Investigating Violations of IHL: From Fact-Finding to War Reporting.” Recordings of the first two of those Live Web Seminars are also available on iTunes.

Unlawful appropriation of property during armed conflict

Dustin Lewis — Fri, 15 Apr 2011 21:38:42 +0000

Blog Type:

IHL in Action

International humanitarian law has long prohibited the unlawful appropriation of public or private property during armed conflict—and with good reason. As demonstrated by the recent conflicts in, for example, Sierra Leone, Iraq, East Timor, and the Democratic Republic of Congo, the unlawful appropriation of property, including the illegal exploitation of natural resources, has the capacity to (sometimes literally) fuel armed conflict and to exacerbate its effects.

In October 2010, the Open Society Foundations published a report written by James G. Stewart titled “Corporate War Crimes: Prosecuting Pillage of Natural Resources” and co-sponsored a conference on the topic in The Hague. Professor Stewart identifies bases in domestic and international law on which individuals—as well as, to a certain extent, corporate entities—may be subject to war crimes prosecutions for committing unlawful appropriate of public or private property during armed conflict. In doing so, the author notes some humanitarian concerns associated with the prohibition. For instance, he examines the legal concept of "usufruct," as well as the extent, if any, to which the law allows an occupying army to exploit non-renewable resources so long as the money from the sales is spent only on the local population’s humanitarian needs.

More information about the prohibition of unlawful appropriation of public or private property—whether it is referred to as “pillage,” “plunder,” “looting,” or “spoliation”—during armed conflict is available at the International Committee of the Red Cross’s Customary IHL Portal, which was recently updated to include additional state practice from 30 states.

Blog Tags:

Pillage

War Crimes

Usufruct

Plunder

Looting

Spoliation

ICRC

Corporate Liability

The Relaunch of ReliefWeb

James Brockman — Wed, 13 Apr 2011 20:15:46 +0000

Blog Type:

Open Learning

“The whole idea was to oxygenate this content that all of these [humanitarian] organizations and institutions have but aren’t readily making accessible to aid workers.” – Mark Dalton (ReliefWeb Coordinator).

ReliefWeb was developed in response to the 1996 Great Lakes refugee crisis in Rwanda and was a UN effort to dramatically improve its knowledge-sharing abilities. It has since evolved into becoming the go-to place for an array of needs for the humanitarian community. With the inclusion of newer Web 2.0 elements that had been lacking in the previous version, it has become a quite advanced platform as of yesterday’s launch.

In May 2010, Mark Dalton was a panelist at the HPCR Live Seminar: ICT and Protection: Can Information and Communication Technology Enhance Humanitarian Action? and spoke of ReliefWeb’s mission and its future development goals for their platform back when the site was in the midst of its redesign. One of the main goals was to “ensure that the future platform speaks to the community, that it pays close attention to the broad humanitarian community.”

Another development goal was to facilitate contact between humanitarians, going beyond providing a one-way communications stream and to make information more accessible. This includes providing papers, viewing and providing infographics, posting job vacancies and training events, and personalizing the user experience through managed favorites and subscriptions. One area of particular interest were the “Briefing Kits.” These kits create a PDF document of multiple documents when researching a particular country and would seem quite useful for quickly finding good reading materials on the go.

For more information on ReliefWeb, visit http://www.reliefweb.int.

Resources:

(1) The United Nation’s ReliefWeb Relaunches – Development Seed 12 April 2011: Excellent overview of the back-end, site building component of the site using the open source content management system Drupal.

(2) ICT and Protection: Can Information and Communication Technology Enhance Humanitarian Action? HPCR Live Web Seminar, held 10 May 2011, Panelist Presentation by Mark Dalton (ReliefWeb Coordinator) about the creation of the new ReliefWeb. His presentation starts at 55 mins 11 seconds.

(3) ReliefWeb Tech A discontinued blog with periodic posts made on updates to the ReliefWeb platform

Blog Tags:

ReliefWeb

Live Web Seminar

The Growth—and Future—of International Law in Internal (or Non-International) Armed Conflicts

Dustin Lewis — Fri, 08 Apr 2011 18:01:20 +0000

Blog Type:

IHL in Action

The number and scope of legal regulations pertaining to armed conflicts between a state and an armed group, or between such groups, have grown almost asymptotically since the early 1990s. In a new article, Sandesh Sivakumaran discusses this growth, and identifies three ways through which it came about: (1) analogy to laws governing international armed conflicts; (2) resort to international human rights law (IHRL); and (3) resort to international criminal law (ICL).

Yet, Sivakumaran argues, the growth in regulations pertaining to “non-international” or “internal” armed conflicts has gone only so far. Indeed, that growth has been constrained, he submits, largely by a tendency to emphasize similarities—and not to recognize salient differences—between international armed conflicts and non-international armed conflicts. Similarly, Sivakumaran avers, this growth has at times collapsed (meaningful) differences between international humanitarian law (IHL) and ICL, as well as between IHL and IHRL. Regarding the former, for example, he explains that:

International criminal law gives rise to individual criminal responsibility and, accordingly, certain provisions of war crimes law are interpreted in a narrower fashion than their international humanitarian law counterparts. If care is not taken, this narrower reading of a war crime will come to replace the broader interpretation of the international humanitarian law rule.

Sivakumaran goes on to identify ways to re-envisage international law applicable to “internal” conflicts.

The legal regulation of such armed conflicts warrants significant attention, and indeed "Non-International Armed Conflict in the 21st Century" is the subject of the upcoming International Law Conference at the Naval War College. Sivakumaran’s article is well worth reading to better understand this topic. As are the reply by Gabriella Blum, and the subsequent rejoinder by Sivakumaran—not least their discussion regarding whether reports of the death of reciprocity (as an organizing principle of IHL) have been greatly exaggerated.

ICJ Judgment in Georgia v. Russian Federation (Preliminary Objections)

Dustin Lewis — Fri, 01 Apr 2011 20:13:20 +0000

Blog Type:

IHL in Action

Today the International Court of Justice issued its judgment on the preliminary objections in the Case Concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation). Previously, the Court indicated provisional measures in the case. In today's judgment, by a 10-6 vote the Court found that it did not have jurisdiction to entertain Georgia's application. While it concluded that there was a legal "dispute" between the parties over Russia's compliance with the CERD, the Court held that Georgia had not fulfilled a precondition for the Court to seize the case (namely, Georgia had not genuinely attempted to negotiate that dispute). As a result of the judgment, the ICJ will not assess the questions raised in Georgia's application involving issues pertaining to, among other things, international humanitarian law and international human rights law.

Yet the ICJ is not the only international body that has reviewed allegations arising out of the hostilities between Georgia and Russia in August 2008. In December 2008, the Council of the European Union constituted an "independent international fact-finding mission on the conflict in Georgia," with the following mandate:

The aim of the fact-finding mission shall be to investigate the origins and the course of the conflict in Georgia, including with regard to international law (1 [Including the Helsinki Final Act]), humanitarian law and human rights, and the accusations made in that context (2 [Including allegations of war crimes]). The geographical scope and time span of the investigation will be sufficiently broad to determine all the possible causes of the conflict. The results of the investigation will be presented to the parties to the conflict, and to the Council, the Organisation for Security and Cooperation in Europe (OSCE) and the United Nations (UN), in the form of a report.

In September 2009, that body presented a three-volume report, in which the authors assess, among other things, the jus ad bellum (the law governing the resort to force) and the jus in bello (the law applicable to situations of armed conflict). Regarding the latter, the IIFFMCG investigated the extent to which Georgia and Russia complied with (or violated) both IHL and IHRL.

Blog Tags:

Russia

Georgia

ICJ

IIFFMCG

Armed Conflict(s) in Libya

Dustin Lewis — Wed, 23 Mar 2011 19:52:46 +0000

Blog Type:

IHL in Action

Press reports indicate that the situation in Libya has changed, and continues to change, rapidly and significantly. In addition to fighting between pro-government forces and anti-government dissidents, a few days ago foreign states commenced military action under the authority of Security Council Resolution 1973 (2011). In that resolution, which was decided under Chapter VII, the Security Council “[a]uthorizes [UN] Member States (…) to take all necessary measures (…) to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory”.

Jus ad bellum vs. jus in bello

At the outset, it is important to stress that international humanitarian law (IHL) applies equally to all sides of an armed conflict, regardless of the lawfulness of the resort to force by either side. This is due to the separation of the jus ad bellum (the law governing the resort to force) and the jus in bello (the law applicable to situations of armed conflict). As (now Judge) Christopher Greenwood writes, "The principle that international humanitarian law applies equally to both sides of a conflict irrespective of the reasons for resort to force or its legality is one of the best established principles of the jus in bello." Accordingly, once an armed conflict exists, all parties to the conflict must comply with the relevant provisions of IHL.

Key principles

As reflected in customary law, IHL requires all parties to an armed conflict at a minimum to adhere to the principles of distinction, proportionality, and military necessity, among others.

Regarding humanitarian access, in its study on customary IHL the International Committee of the Red Cross stated that in all armed conflicts there is a rule requiring that "[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control." The authors explained that, in their view, "[i]f it is established that a civilian population is threatened with starvation and a humanitarian organization which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent" to humanitarian relief actions.

Qualifying the armed conflict(s) in Libya

The question arises as to whether the situation in Libya amounts to a non-international armed conflict or an international armed conflict—or, perhaps, to multiple ongoing armed conflicts.

In an earlier blog post, I outlined factors that certain international bodies have used to determine whether a non-international armed conflict exists. Generally speaking, those bodies have assessed the extent of hostilities and the organization of the parties. The ICRC's president has characterized the hostilities between the pro-government forces and the anti-government dissidents in Libya as a civil war to which IHL provisions pertaining to non-international armed conflict apply. It bears emphasis that in Resolution 1973, the Security Council "[d]emands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians".

A resort to force—including the use of air and missile warfare—between two or more states gives rise to an international armed conflict between those states. In the situation in Libya, foreign forces have reportedly limited their force to the use of air and missile warfare. Recently, the Program on Humanitarian Policy and Conflict Research at Harvard University published the HPCR Manual on International Law Applicable to Air and Missile Warfare, as well as the Commentary on the HPCR Manual.

A separate, but related, question arises regarding whether an intervention by foreign forces on behalf of a non-state armed group fighting the host state’s armed forces "internationalizes" an already-existing non-international armed conflict. If so, the "new" conflict would in principle be governed by the provisions applicable to international armed conflicts. According to judgments of the International Criminal Tribunal for the former Yugoslavia and opinions of the International Court of Justice, determining how to qualify a situation where foreign states intervene on behalf of a non-state armed group fighting the host state's armed forces depends largely on the nature of the relationship and the extent of control between the intervening state(s) and the non-state armed group. A mere rhetorical pronouncement by the armed group would not by itself create a sufficient nexus between the armed group and the intervening state(s) so as to "internationalize" the already-existing non-international armed conflict.

Live Web Seminar

On April 5, 2011, the Program on Humanitarian Policy and Conflict Research at Harvard University will host a free Live Web Seminar on “The Crisis in Libya: The International Response.” Materials regarding the qualification of armed conflict and the situation in Libya are available at the International Humanitarian Law Research Initiative Portal.

Updated March 24, 2011.

Humanitarian Access in Somalia and Security Council Resolution 1972 (2011)

Dustin Lewis — Fri, 18 Mar 2011 20:48:27 +0000

Blog Type:

IHL in Action

Amid the extensive recent press coverage of the UN Security Council's response to the situation in Libya, an important resolution on humanitarian access and assistance in Somalia was all but lost. On Thursday, acting under Chapter VII the Security Council adopted Resolution 1972 (2011). In that resolution, the Council effectively extended for sixteen months a limited exemption from an asset freeze against designated individuals and entities in order to ensure the delivery of urgently needed humanitarian assistance in Somalia.

For background information about the Council's activities regarding Somalia, see Security Council Report's March 2010 "Monthly Forecast." And for an initial analysis of how the earlier resolution establishing the humanitarian exemption in Somalia (i.e., Resolution 1916 (2010)) may fit within broader counterterrorism and humanitarianism trajectories, see HPCR's Working Paper on "Criminalizing Humanitarian Engagement."

Blog Tags:

Somalia

Humanitarian Access

The Kampala Convention on IDPs in Africa

Dustin Lewis — Fri, 11 Mar 2011 17:50:45 +0000

Blog Type:

IHL in Action

In 2009, the African Union adopted the Convention for the Protection and Assistance of Internally Displaced Persons in Africa, which is also known as the Kampala Convention. Currently, 26 states have signed the treaty, but only five have ratified it; the treaty will come into force once 15 states have taken the steps necessary to become a party to it.

The Convention builds on international humanitarian law and international human rights law, as well as the Guiding Principles on Internal Displacement. The Kampala Convention's objectives include promoting and strengthening regional and national measures to prevent, mitigate, prohibit, and eliminate the root causes of internal displacement. The Convention also aims to provide for the responsibilities and roles of armed groups and non-state actors with respect both to preventing internal displacement and to protecting and assisting IDPs.

On March 22, 2011, HPCR will host a Live Web Seminar webcast from the Carr Center for Human Rights Policy at the Harvard Kennedy School of Government. Special Rapporteur on human rights of IDPs Dr. Chaloka Beyani will serve as the Guest Panelist. Dr. Katinka Ridderbos and Mr. Allehone Mulugeta Abebe, who have each recently published articles on the Kampala Convention, will act as Guest Commentators. As stated in the Live Web Seminar's announcement, the participants will discuss such questions as:

How does the Convention relate to existing humanitarian and human rights provisions? To the Guiding Principles on Internal Displacement? To domestic laws and policies?

What are the aims of the Convention, and how are they operationalized? How did the drafters approach the issues of implementation and enforcement?

What is the appropriate role of the international community, humanitarian agencies, and civil society in responding to internal displacement?

What is the role of armed groups under the Convention? What does this mean for their legal accountability?

How might this Convention serve as a model for other regional responses to internal displacement?

More information about this event, as well as about the Kampala Convention and IDPs more generally, is available at the International Humanitarian Law Research Initiative Portal.

Blog Tags:

Kampala Convention

IDPs

African Union

Does the situation in Libya constitute a non-international armed conflict?

Dustin Lewis — Tue, 01 Mar 2011 20:53:28 +0000

Blog Type:

IHL in Action

Recent reports of the use of force against civilians in Libya raise an important question: when does a situation in which a state commits violence against its civilians amount to a non-international armed conflict? The question is significant for a variety of reasons, not least because international law provides a range of modalities through which a state or international body may address use-of-force violations, and discerning which modalities may be utilized often requires a legal characterization of the situation in which the violations were committed.

For instance, war crimes may occur only in situations of armed conflict. (For recent assessments of the grave breaches regime of IHL, see the collection of articles in Volume 7, Issue 4 of the Journal of International Criminal Justice; it is important to note that in addition to grave breaches of IHL, under the International Criminal Court's statute other serious violations of the laws of armed conflict, whether committed in international or non-international armed conflict, may give rise to individual criminal responsibility.) According to the ICC's statute, crimes against humanity may occur in situations outside of armed conflict. These distinctions regarding situational predicates gained renewed salience when the UN Security Council referred the situation in Libya since February 15, 2011 to the ICC prosecutor.

To determine whether a situation of violence amounts to a non-international armed conflict, certain international bodies, as recently detailed by Anthony Cullen, have employed a two-pronged test. The first prong is the intensity of hostilities, and the second prong is the organization of the armed group(s).

In its 2008 judgment in the Prosecutor v. Boškoski et al. case, Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY) identified factors that could be used to indicate each prong. As for the first prong, Trial Chamber II stated in para. 177 (footnotes omitted) that:

Various indicative factors have been taken into account by Trial Chambers to assess the “intensity” of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.

As for the second prong, the trial chamber identified five broad groups of factors that may indicate whether an entity constitutes an “organized armed group” for purposes of IHL. Paraphrased, those broad groups are: (1) factors signalling the presence of a command structure; (2) factors indicating that the group could carry out organized operations; (3) factors indicating a level of logistics; (4) factors relevant to determining if the group possessed a level of discipline and the ability to implement IHL; and (5) factors indicating that the group could speak with one voice (paras. 199-203).

Blog Tags:

Libya

Qualification

NIAC

ICTY

ICC

Attacks on Education in Armed Conflict

Dustin Lewis — Wed, 02 Feb 2011 18:47:32 +0000

Blog Type:

IHL in Action

In its year-end report for 2010, Human Rights Watch spotlights attacks against educational institutions and against students and teachers during armed conflict. After discussing the scope of such attacks (which are committed by both states’ armed forces and non-state armed groups), Zama Coursen-Neff and Bede Sheppard identify some of their causes and consequences, and proffer suggestions on how to halt them.

International humanitarian law (which applies only during armed conflict) protects educational institutions as civilian objects. Under IHL, civilian objects may not be attacked, unless and for such time as they are used for military purposes and become a military objective. Similarly, students and teachers, as with all civilians, may not be attacked, unless and for such time as they participate directly in hostilities. For its part, the Rome Statute of the International Criminal Court makes it a war crime in both international and non-international armed conflicts to “[i]ntentionally direct[] attacks against buildings dedicated to (…) education (…), provided they are not military objectives”. For more information on the legal protection afforded by IHL against attacks on education, see Peter Rowe’s chapter in the 2010 UNESCO report on “Protecting Education from Attack.”

The HRW researchers argue that “[p]utting an end to attacks on schools, teachers, and students requires action at national and international levels on three fronts: Stronger monitoring systems; Targeted preventive measures, and more decisive and timely response when incidents do occur; and Effective justice mechanisms that hold violators of domestic and international law accountable.” They highlight the role of the Monitoring and Reporting Mechanism (MRM) associated with Security Council Resolutions 1612 (2005) and 1882 (2009), which aims to halt six grave violations against children in armed conflict. One of those grave violations is attacks against schools or hospitals.

Submitting that the MRM “provides a vehicle that, if more focused on [attacks against schools], could have particularly far-reaching impact” on education in armed conflict, Coursen-Neff and Sheppard note that:

Supported by the MRM, the UN has achieved substantial successes reducing the use of child soldiers by negotiating action plans with both governments and armed groups to demobilize children from their forces and end new recruitment of children. To achieve similar success in ending attacks on education, the UN-led country teams that monitor violations against children in armed conflict should improve their monitoring of attacks on education, providing the Security Council with more information and recommendations for action. Additionally, the Security Council should include attacks on education as a "trigger" to start up the MRM. [At present the MRM is only "triggered" by evidence of the war crimes of recruitment and use of children as soldiers, sexual violence against children in conflict, and killing and maiming of children. Once it is operational in a country, however, the mechanism is required to monitor other abuses, including attacks on education.]

Additional resources on attacks against educational institutions and against students and teachers in armed conflict are available at the resource page for HPCR’s Live Seminar on “Education and Armed Conflict” and in the 2010 UNESCO report.

Blog Tags:

HRW

1612

ICC

Education

MRM

"Mercenaries" and Somalia

Dustin Lewis — Fri, 21 Jan 2011 15:22:50 +0000

Blog Type:

IHL in Action

Yesterday, the New York Times reported that, “Erik Prince, the founder of the international security giant Blackwater Worldwide, is backing an effort by a controversial South African mercenary firm to insert itself into Somalia’s bloody civil war by protecting government leaders, training Somali troops, and battling pirates and Islamic militants there, according to American and Western officials.” The article identifies Saracen International as the South African firm, reporting that the company “was formed with the remnants of Executive Outcomes, a private mercenary firm composed largely of former South African special operations troops who worked throughout Africa in the 1990s.”

International humanitarian law (IHL) does not categorically prohibit mercenarism in all circumstances. Rather, determining whether mercenarism is prohibited in a specific armed conflict requires a case-by-case analysis.

Additional Protocol I (AP I)—which applies only to states that are party to the treaty and only during international armed conflicts—defines "mercenary." As a consequence of being designated a “mercenary” under AP I, the “mercenary shall not have the right to be a combatant or a prisoner of war.” Somalia, however, has not become a party to AP I. Moreover, commentators have generally qualified armed conflict in Somalia as being non-international in character, not international. Other conventions pertaining to mercenaries include the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which Somalia has not signed, and the Organization of African Unity Convention for the Elimination of Mercenarism in Africa, which Somalia has signed but not become a party to.

In any event, Article 47(2) of AP I defines anyone who meets the following six cumulative factors as a “mercenary” under the convention; a “mercenary” is anyone who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict; and

(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

The International Committee of the Red Cross has characterized this as a “very restrictive” definition.

Even if an individual involved in private security work during an international armed conflict does not meet Article 47(2)’s “very restrictive” definition of a mercenary, he or she does not fall outside of IHL. Rather, as explicated by Lindsey Cameron, discerning the nature and extent of legal protections afforded to, as well as the obligations incumbent upon, such an individual turns on whether he or she qualifies as a combatant or as a civilian. However, as Cameron further explains, it important to point out that "mercenary status is relevant under international humanitarian law only in international armed conflicts (since combatant status and its privileges exist only in those conflicts), whereas the mercenary conventions may also apply in situations of non-international armed conflict."

Additional resources on the conflict in Somalia include Omar Abdulle Alasow’s Violations of the Rules Applicable in Non-International Armed Conflicts and Their Possible Causes: The Case of Somalia (2010). Materials on the legal status of private military and security companies (and their personnel) under international law are available in the 2006 volume of the International Review of the Red Cross dedicated to “private military companies.”

Next Week's Live Seminar on Humanitarianism in Afghanistan

Dustin Lewis — Fri, 14 Jan 2011 19:59:16 +0000

Blog Type:

IHL in Action

Next Thursday, HPCR is hosting a free online Live Seminar on “The Future of Humanitarianism in Afghanistan.” (Register here.) My colleagues Naz Modirzadeh and Elizabeth Holland will lead a discussion on some of the key challenges facing humanitarian actors in Afghanistan. Scheduled panelists include Ashley Jackson of Oxfam International, Lynn Yoshikawa of Refugees International, and LTC Eric Young of the Naval War College (who will be presenting in his personal capacity).

Two days ago, Michiel Hofman—who just finished a two-year stint in Afghanistan with Doctors Without Borders/Médecins Sans Frontières (MSF)—spotlighted what he characterized as a “tragically absurd catch-22” facing sick or wounded Afghans who seek aid:

[G]oing to a NATO-run clinic or receiving assistance from groups affiliated with the NATO counterinsurgency (COIN) strategy risks retaliation from the opposition, be they Taliban or other militant groups. Civilians face the same risks from international and Afghan forces if they turn to the opposition for assistance. In this environment, seeking help amounts to choosing sides in the war.

The result is a tragically absurd catch-22: People put off seeking assistance because doing so can endanger their lives.

Mr. Hofman noted that “[n]early all of the provinces in Afghanistan are experiencing active conflict.” As a legal framework applicable to armed conflict, international humanitarian law includes provisions relating to humanitarian access and assistance.

According to Common Article 3 of the Geneva Conventions, in non-international armed conflicts “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” The International Court of Justice has indicated that to be considered “humanitarian,” assistance must be limited to preventing and alleviating human suffering, to protecting life and health, and to ensuring respect for human being—and, “above all”, it must “be given without discrimination to all in need”.

Yet Mr. Hofman notes that, “[w]hile NGOs mostly claim their assistance is based on humanitarian principles, this is often inaccurate in Afghanistan. Many NGOs implement nation-building projects at the behest of Afghan and U.S. government agencies, such as the United States Agency for International Development (USAID).”

Resources on these and other humanitarian challenges in Afghanistan are available at the International Humanitarian Law Research Initiative portal. In addition, assessments of certain legal aspects of armed conflict in Afghanistan—such as human rights, detention operations, conduct of hostilities, and the legal basis for military operations—are available in the US Naval War College, The War in Afghanistan: A Legal Analysis (ed. Michael N. Schmitt), International Law Studies (Blue Book) Series, 2009.

Blog Tags:

Afghanistan

Humanitarian Access

Humanitarian Principles

Common Article 3

New UN "Listing" Mechanism Aimed at Combating Sexual Violence in Armed Conflict

Dustin Lewis — Mon, 20 Dec 2010 16:12:17 +0000

Blog Type:

IHL in Action

Last Thursday, the United Nations Security Council adopted an important resolution aimed at combating sexual violence in armed conflict. In short, Resolution 1960 (2010) established a mechanism through which the Secretary-General will list parties “that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in armed conflict”. At the same time, the mechanism will allow designated parties to be “de-listed” once there is UN-verified information that the party has ceased committing such patterns of sexual violence. Resolution 1960 stipulates that the Secretary-General may designate only parties from situations that are already on the Security Council’s agenda. The agenda includes Afghanistan, the Central African Republic, Chad, the Democratic Republic of the Congo, Iraq, Myanmar (Burma), Nepal, Somalia, and Sudan.

In addition, the resolution expresses the Security Council’s “intention to use this list as a basis for more focused United Nations engagement with those parties, including, as appropriate, measures in accordance with the procedures of the relevant sanctions committees”. Furthermore, the resolution “[c]alls upon parties to armed conflict to make and implement specific and time-bound commitments to combat sexual violence,” and identifies specific ways to do so.

As noted in a previous blog entry, the UN Security Council established a similar monitoring-and-reporting mechanism aimed at combating violations against children in armed conflict, including sexual violence. With Resolution 1960 (2010), the Security Council has once again cast a spotlight on the importance of providing adequate resources, alongside “naming and shaming” perpetrators, in order to end impunity for wartime violations.

For purposes of Resolution 1960’s listing mechanism, a “pattern” of sexual violence may be established consistent with the following criteria:

Based on the use of the notion in similar contexts, a “pattern” denotes a “methodical plan”, “a system” and a collectivity of victims. It is a “multiple commission of acts” which, as such, excludes a single, isolated incident or the random conduct of an individual acting alone and presumes intentional, wilful conduct. In proving the acts to be systematic, it would also be necessary to show that all such acts in contravention of applicable international law involving (…) sexual violence (…) are being perpetrated in the same context and, from that perspective, are considered “linked”.

Similarly, Resolution 1960’s listing mechanism may implement a definition of “rape and other forms of sexual violence” that “include[s] rape, sexual slavery and/or any other form of sexual violence.”

International law prohibits rape and other forms of sexual violence in armed conflict, regardless of whether the violence is perpetrated against women, children, or men. Indeed, a notable aspect of Resolution 1960 (2010) is how its operative paragraphs do not single out women and children as victims of sexual violence (as in some previous resolutions in the Women, Peace, and Security thematic agenda topic). Instead, the resolution's operative paragraphs implicitly recognize that adult men may also be victims of sexual violence in armed conflict. In 2009, HPCR published a “Primer” on sexual violence that provides links to relevant treaties, jurisprudential developments, and academic articles. More recently, Security Council Report published a “Cross-Cutting Report” on the Security Council’s Women, Peace, and Security agenda topic.

Blog Tags:

Sexual Violence

War Crimes

Police and Military Actions in Rio de Janeiro

Dustin Lewis — Fri, 17 Dec 2010 20:20:45 +0000

Blog Type:

IHL in Action

In late November, the New York Times reported that police officers and army soldiers in Rio de Janeiro attempted to “‘pacify’ 13 of the more violent slums by invading, rooting out drug traffickers and installing a special community police force.” Such government actions are not new. Previous versions have been characterized by former UN Special Rapporteur Philip Alston as “large-scale confrontational ‘war’ style policing.” Indeed, according to Professor Alston, “[d]uring 2007 and early 2008, police mounted a number of large-scale operations involving hundreds of men supported by armoured vehicles and attack helicopters, to ‘invade’ and take back favelas controlled by gangs.”

In a recent article in the Journal of International Humanitarian Legal Studies, Professor Sven Peterke discusses whether the situation in Rio de Janeiro amounts to an armed conflict. He concludes that it does not, arguing that the intensity of hostilities, among other factors, is insufficient to trigger the application of international humanitarian law.

A variety of elements may be weighed to determine whether a situation amounts to a non-international armed conflict, which would be governed by IHL, or, alternatively, to an internal disturbance or tension (such as riots, isolated and sporadic acts of violence and other acts of a similar nature), which would not trigger the application of IHL. Such elements include the duration and intensity of hostilities, as well as the parties’ level of organization. According to a decision of the International Criminal Tribunal for the former Yugoslavia,

Trial Chambers have relied on indicative factors relevant for assessing the “intensity” criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.

For additional assessments regarding the qualification of armed conflicts, see articles by Sylvain Vité, Robin Geiß, Michael Schmitt, and my colleague Elizabeth Holland (forthcoming).

Blog Tags:

ICTY

Brazil

Qualification

Non-international armed conflict

Rio de Janeiro

Police

Armed Groups' Compliance with IHL

Dustin Lewis — Fri, 10 Dec 2010 19:18:12 +0000

Blog Type:

IHL in Action

Many—and, by some accounts, most—contemporary armed conflicts are characterized by hostilities waged not between two or more states, but rather between a state’s armed forces and an armed group or between two armed groups within a state. In 2009, the UN Secretary-General identified enhancing compliance by non-state armed groups with international humanitarian law as one of the five core challenges to promoting civilian protection. In addition, last August the Special Representative of the Secretary-General for Children and Armed Conflict emphasized the importance of maintaining dialogue with armed groups listed through the monitoring and reporting mechanism associated with Security Council Resolution 1612 (2005).

In recent years, a growing number of scholars has examined how to enhance armed groups’ compliance with IHL, as well as, more generally, the theoretical and legal bases through which international law regulates armed groups. For example, in 2002 Liesbeth Zegveld outlined who may be held accountable under international law for acts committed by armed opposition groups and for failure to prevent or repress such acts. In 2006, Sandesh Sivakumaran examined how international law may bind armed opposition groups, focusing on a state’s ability to legislate on behalf of its individuals. Earlier this year, Aristotelis Constantinides identified the practice of the UN Security Council with a view toward accountability of armed opposition groups. And in October, Marco Sassòli argued in favor of allowing and encouraging armed groups to report on their compliance with IHL through an existing or newly created institution.

Additional materials are available at the website of the Transnational and Non-state Armed Groups research initiative.

Blog Tags:

1612

armed groups

The ICC Trial Against Jean-Pierre Bemba Gombo Begins

Dustin Lewis — Mon, 22 Nov 2010 19:57:35 +0000

Blog Type:

IHL in Action

Today, the trial of Jean-Pierre Bemba Gombo began at the International Criminal Court in The Hague. In the Court's third trial, the defendant pleaded “not guilty” to two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). A former vice president of the Democratic Republic of Congo, Mr. Bemba has been charged as a military commander allegedly responsible for his troops' actions in the Central African Republic from late October 2002 to mid-March 2003.

The ICC’s Rome Statute contains separate lists for war crimes committed during international armed conflicts (Articles 8(2)(a)-(b)) versus non-international armed conflicts (Article 8(2)(c) and 8(2)(e)), though each of the war crimes Mr. Bemba is accused of is recognized in both IAC and NIAC. By definition, war crimes may be committed only during situations of armed conflict (unlike crimes against humanity, which may be committed outside of armed conflicts).

To determine whether an armed conflict existed during the period for which Mr. Bemba is accused of war crimes, the ICC’s Pre-Trial Chamber II reviewed various factors drawn from the ICC's Statute, as well as the jurisprudence of the ICTY and ICTR, Article 3 of the Geneva Conventions, Article 1(1) of Additional Protocol II, and relevant commentaries. Those factors included the intensity and duration of hostilities, as well as the organization of the parties. In confirming many of the charges against Mr. Bemba, Pre-Trial Chamber II concluded that there were substantial grounds to believe that a non-international armed conflict existed during the period under review. In doing so, the Chamber cited a lack of evidence to establish that another State had sent forces to oppose the CAR government:

[T]he Chamber finds that the armed conflict on the CAR territory was not of an international character. Throughout the time period in question, the conflict remained within the confines of the CAR. No information on the involvement of foreign States, which would characterise the conflict as international, is available in the Disclosed Evidence. The presence of a limited number of foreign troops on the CAR territory, such as the MLC soldiers, Chadian mercenaries and the Libyan troops, was intended to support the CAR government authorities to counter the organized armed group led by Mr Bozizé, and was not directed against the State of the CAR and its authorities.

For more detail about the legal elements of the case, see articles by Kai Ambos and Nora Karsten, as well as HPCR's "Primer" on sexual violence (Mr. Bemba allegedly committed, as a military commander, rape of women and children, as well as men, during the conflict). In 2009, Guénaël Mettraux published a book on “The law of command responsibility,” which won the Lieber Prize from the American Society of International Law. In addition, the Open Society Justice Initiative is publishing a website dedicated to the trial against Mr. Bemba.

Blog Tags:

War Crimes

Crimes Against Humanity

Sexual Violence

ICC

Jean-Pierre Bemba Gombo

CAR

Pillage

Murder

Command Responsibility

NIAC

IHL and UCAVs (aka "Drones")

Dustin Lewis — Mon, 15 Nov 2010 19:33:35 +0000

Blog Type:

IHL in Action

The reported use of Unmanned Combat Aerial Vehicles (UCAVs)—also known as “drones”—in areas such as Afghanistan, Pakistan, Somalia, and Yemen has engendered a wide variety of responses among international and domestic lawyers and policy analysts, such as last Friday's ASIL Insight by Professor Mary Ellen O'Connell. Indeed, within the past year alone, panelists before the U.S. Congress, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, and the U.S. State Department Legal Adviser, among others, have all examined legal and policy issues pertaining to the reported use of UCAVs. (As did various commentators during an HPCR live seminar last December.)
Determining which legal framework applies (or frameworks apply) to a specific use of force deployed via a UCAV depends partly on whether an armed conflict exists. International humanitarian law is applicable to a use of force deployed via a UCAV only in situations that rise to the level of an armed conflict. (Last January, HPCR hosted a live seminar regarding questions related to the threshold of armed conflict. In addition, HPCR recently published the HPCR Manual on International Law Applicable to Air and Missile Warfare, as well as its Commentary.)
In situations of armed conflict, the use of force—whether deployed through a UCAV or any other weapons platform—is not unlimited, but rather must conform to the principles laid down in IHL. As noted in the Commentary on the 1977 Protocols additional to the Geneva Conventions, IHL is a “compromise based on a balance between military necessity, on the one hand, and the requirements of humanity, on the other.” To strike that balance, IHL requires each use of force to adhere to the principles of distinction, necessity, and proportionality, among others (see, e.g., Articles 48, 51, 52, and 57 of Additional Protocol I).

Blog Tags:

Afghanistan

Somalia

Distinction

UCAV

Drones

Pakistan

Yemen

necessity

proportionality

IHL and Human Rights Treaty-Monitoring Bodies

Dustin Lewis — Wed, 10 Nov 2010 19:53:33 +0000

Blog Type:

IHL in Action

In the past few years, some human rights treaty-monitoring bodies have increasingly incorporated international humanitarian law into their assessments of states parties’ compliance with the treaty under review. Indeed, recently published and draft articles (co-)authored by Professor David Weissbrodt detail the extent to which some treaty-monitoring bodies include IHL provisions in their General Comments or Concluding Observations, among other assessments.

According to Professor Weissbrodt and his co-authors, the Human Rights Committee (which assesses compliance with the ICCPR), the Committee on the Elimination of Racial Discrimination (which assesses compliance with the CERD), and the Committee on the Rights of the Child (which assesses compliance with the CRC) has each interpreted IHL in addition to, or in parallel of, the provisions entailed in their respective treaty. When examining the work of the Committee on the Rights of the Child, for example, Professor Weissbrodt and his co-authors conclude that “although the Committee does not explicitly analyze the protections of IHL,” in the end the Committee “may contribute to the development and solidification of customary norms of international humanitarian law.”

For an additional perspective, see Professor Françoise Hampson’s article published in the International Review of the Red Cross in 2008.

Blog Tags:

HRC

CERD

CRC

ICCPR

IHRL

Investigating IHL Violations

Dustin Lewis — Thu, 28 Oct 2010 16:30:19 +0000

Blog Type:

IHL in Action

In a forthcoming (draft) article in the Harvard National Security Journal, Professor Michael N. Schmitt of Durham Law School discusses international law standards applicable to investigations into alleged IHL violations. Professor Schmitt identifies four principles that, despite being drawn partially from human rights law, “surely infuse the IHL requirement to investigate”. Those four principles are independence, effectiveness, promptness, and impartiality.

Regarding the effectiveness principle, Professor Schmitt submits that discerning the applicable investigatory standards requires an assessment into each armed conflict’s specific context. A contextual analysis is necessary due to a state’s constrained ability to perform investigations during armed conflict compared to peacetime:

Evidence may have been destroyed during the hostilities, civilian witnesses may have become refugees or internally displaced persons, military witnesses may be deployed elsewhere or be engaged in combat, territory where the offense occurred may be under enemy control, forensic and other investigative tools may be unavailable on or near the battlefield, military police may be occupied by other duties such as prisoner of war handling, legal advisers may be providing conduct of hostilities advice, judicial bodies may be distant from the theatre of operations, communications may be degraded, travel may be hazardous, and so forth.

Professor Schmitt’s article also raises an important issue regarding what technical capabilities investigators may need to possess in order to effectively investigate certain IHL violations:

An investigator who does not understand, for example, weapons options, fuzing, guidance systems, angle of attack, optimal release altitudes, command and control relationships, communications capabilities, tactical options, available intelligence options, enemy practices, pattern of life analysis, collateral damage estimate methodology, human factors in a combat environment and so forth will struggle to effectively scrutinize an air strike.

In recent years, NGOs and UN bodies, among other entities, have increasingly monitored alleged violations of IHL. Human Rights Watch, for instance, has issued reports recently on armed conflicts in Darfur, Somalia, and Sri Lanka. In addition, UNICEF helps implement the Monitoring and Reporting Mechanism associated with UN Security Council Resolution 1612 (2005) by investigating allegations of six grave violations against children in armed conflict, many of which are rooted in IHL and human rights law.

Blog Tags:

Sudan

Monitoring

UNICEF

HRW

Somalia

Sri Lanka

1612

IHRL

Hearing in "Targeted Killing" Case

Dustin Lewis — Thu, 14 Oct 2010 19:54:26 +0000

Blog Type:

IHL in Action

The United States District Court for the District of Columbia is scheduled to hold a hearing in Al-Aulaqi v.Obama et al. on October 22, 2010. The day before, HPCR is hosting a Live Seminar that will examine some of the legal and policy issues raised in the al-Aulaqi pleadings. Laurie Blank, Jonathan Hafetz, and Kevin Jon Heller will discuss the use of force and international law in relation to counterterrorism operations, in particular “targeted killings” away from traditional notions of the battlefield.

The Live Seminar’s resource page provides materials giving a range of views on “targeted killings” and associated issues. In May 2008, HPCR published a “Primer” on “targeted killings,” concluding that

Examination of the legality of targeted killings by necessity draws in such related questions as whether there is an armed conflict triggering the application of international humanitarian law; what constitutes direct participation by a civilian in hostilities; the implications for state sovereignty of state consent for strikes on its territory; and the applicability of a military or law enforcement paradigm to a given situation. Ultimately the question of the legality of such a strike in the context of an armed conflict is based on rules of international humanitarian law, and specifically those governing the conduct of hostilities.

Registration for the free event is required; click here.

Blog Tags:

IHRL

Targeted killing

DPIH

Protection of Children and Armed Conflict

Dustin Lewis — Fri, 08 Oct 2010 13:12:15 +0000

Blog Type:

IHL in Action

The Special Representative of the Secretary-General for Children and Armed Conflict, Radhika Coomaraswamy, recently observed that,

Children have become more vulnerable to new tactics of war, including the blurring of lines between military and civilian targets, constriction of humanitarian space and access to affected populations, deliberate targeting of traditional safe havens and critical infrastructures such as educational institutions and medical facilities, and the rise of terrorism as well as counter-terrorism measures.

International humanitarian law provides children protection during armed conflict in two ways. The first is through the general protection IHL gives to all individuals who are hors de combat (outside of combat). The second is through child-specific provisions, such as those affording children particular protection in terms of evacuation measures; assistance, care, and education; detention standards; and family reunification. In addition, the Convention on the Rights of the Child and its Optional Protocol on the involvement of children in armed conflict (2000) provide legal protection for children affected by, among other things, armed conflict.

In recent years, IGOs and NGOs have focused increased attention on—and devoted enhanced resources to—ameliorating the effects of armed conflict on children. Perhaps the most prominent response in this area of law and policy is the Monitoring and Reporting Mechanism associated with UN Security Council Resolution 1612 (2005). Another is the prosecution of individuals accused of violating IHL applicable to children, including at the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the Special Court for Sierra Leone.

For additional reference materials, see the resources pages of HPCR’s live seminars on Challenges to Child Protection in Armed Conflict and on Education and Armed Conflict.

Blog Tags:

UNICEF

CRC

ICC

1612

ICTY

SCSL

LWS

Humanitarian Access, the ICC, and Sudan

Dustin Lewis — Tue, 28 Sep 2010 21:07:51 +0000

Blog Type:

IHL in Action

A few days ago, Malawian President Bingu wa Mutharika called on the Security Council to issue a one-year deferral of the ICC’s case against President Omar al-Bashir of Sudan. President wa Mutharika referred to Article 16 of the Rome Statute, which provides,

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The issuance of two ICC arrest warrants against President Bashir—for war crimes, crimes against humanity, and genocide—raises many international law and policy issues, including the lawfulness (or not) of arresting and surrendering a sitting head of state to the ICC, in particular when Sudan has not taken the steps to become a party to the Rome Statute. An issue that has received relatively less attention is how the arrest warrants affect humanitarian access in Sudan.

In March 2009, an ICC Pre-Trial Chamber issued the first arrest warrant against President Bashir. Within a few days, the Government of Sudan (GoS) expelled 13 humanitarian-aid groups, stating that the groups had supported the ICC’s investigation of President Bashir. Four months later, reports indicate, the GoS allowed some of the groups to return under different registration identities.

With recent reports of hostility toward humanitarian-aid personnel in Darfur, as well as a Sudanese referendum slated for January 2011, humanitarian access continues to be important in Sudan.

Blog Tags:

ICC

Humanitarian Access

Sudan

IHL and IHRL at the ICJ: Georgia v. Russia Public Hearings

Dustin Lewis — Wed, 15 Sep 2010 15:54:24 +0000

Blog Type:

IHL in Action

This week, the International Court of Justice is hearing arguments in the Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). In short, Georgia alleges that Russia has violated, since the early 1990s, its obligations under the CERD when Russia—both through its own organs and by supporting separatist forces in Abkhazia and South Ossetia under Russian control and direction—committed acts of discrimination against ethnic Georgians. In response, Russia argues that Georgia’s application relates to the use of force, humanitarian law, and territorial integrity—not to racial discrimination as such—and that in any event there is no legally cognizable dispute for the Court to seize.

In October 2008, by an 8-7 majority the Court indicated provisional measures, directing both Georgia and Russia to refrain from acts of racial discrimination and, more particularly, to ensure the security of all persons, the right to freedom of movement and residence, and the protection of property of displaced persons and refugees. The judges are now weighing whether the Court may exercise jurisdiction over the alleged dispute.

Georgia's application involves questions pertaining to international humanitarian law (IHL) and international human rights law (IHRL), among other legal frameworks. One question is whether—and, if so, to what extent—the CERD applies extraterritorially and during armed conflict. Another is what criteria determine whether in practice the acts of non-state actors engage a State's responsibility. And still another is how the law of occupation interacts with IHRL in the circumstances under review.

Cindy Galway Buys composed an overview of the proceedings. In addition, Tobias Thienel published an article titled “The Georgian Conflict, Racial Discrimination and the ICJ: The Order on Provisional Measures of 15 October 2008," which touches upon some of the issues raised above. And, finally, my colleague Naz Modirzadeh recently wrote an article examining extraterritorial application of IHRL, including in situations of occupation.

Blog Tags:

IHRL

CERD

ICJ

Russia

Georgia

IHL and the Charges against Omar Khadr

Dustin Lewis — Thu, 02 Sep 2010 17:42:21 +0000

Blog Type:

IHL in Action

The prosecution of Omar Khadr in a U.S. Military Commission at Guantanamo Bay raises many important international humanitarian law issues. One such issue is whether the charges against Khadr comport with IHL and municipal law. In a recent paper, Professor David Glazier examines the validity of those charges, and concludes that:

"[T]he specifications (…) either fail to state a recognized violation of the law of war, or where the offense is facially valid, the specific conduct charged does not meet the law’s definition of the crime. The perverse irony is that the only ‘war crime’ present in Khadr’s Guantánamo courtroom appears to be the denial of a fair trial, and the perpetrator is the government, not the defendants."

One of the charges against Khadr that Glazier assesses is the offence of committing “murder in violation of the law of war.” For a comparative analysis, see Professor John C. Dehn's recent article on the legal basis for charging “murder in violation of the law of war” under the U.S. Military Commissions Act.

Blog Tags:

Military Commission

War Crimes

Omar Khadr

Supreme Court Decision: Holder v. Humanitarian Law Project

Dustin Lewis — Fri, 20 Aug 2010 16:40:19 +0000

Blog Type:

IHL in Action

A June 2010 U.S. Supreme Court decision has important implications for individuals who may engage with certain non-state armed groups. In Holder v. Humanitarian Law Project, a 6-3 majority held that the material support of terrorism statute, when applied to certain activities proposed by the Humanitarian Law Project, did not violate the Constitution.

The law makes it a federal crime—punishable by up to 15 years in prison—to knowingly provide “material support” to a designated foreign terrorist organization (FTO). The statute's definition of “material support” includes providing “property,” “services,” “training,” “expert advice or assistance,” or “personnel” to an FTO. As of August 6, 2010, the Secretary of State had designated 46 entities as FTOs. In Holder, the Supreme Court held that, among other things, training members of an FTO to use international law to resolve disputes or teaching FTO members how to petition certain representative bodies (such as the United Nations) for relief would violate the statute.

Some NGOs advocate active engagement with non-state armed groups with a view to promoting peace. Other entities may attempt to access environments where FTOs operate in order to provide humanitarian relief. The implications of engaging with certain non-state armed groups must be seen within a context that includes the Holder ruling.

Blog Tags:

US Supreme Court

Criminal Law

Holder

Humanitarian Engagement

Civilian Casualties in Afghanistan

Dustin Lewis — Fri, 13 Aug 2010 20:41:55 +0000

Blog Type:

IHL in Action

Two organizations issued reports recently on the number of conflict-related civilian casualties in Afghanistan during the first part of 2010. The United Nations Assistance Mission in Afghanistan (UNAMA) released a report stating that, in the first six months of 2010, 1,271 civilians had died in conflict-related incidents. UNAMA alleged that Anti-Government Elements were responsible for 76% and Pro-Government Forces were responsible for 18% of civilian casualties during that period. The Afghan Independent Human Rights Commission (AIHRC) issued a report indicating 1,325 civilian casualties in the first seven months of 2010. The AIHRC reported that, during those seven months, Anti-Government Elements’ armed activities caused 67.5% of civilian causalities while Pro-Government Forces’ armed activities were responsible for 23% of civilian casualties.

In a 1996 Advisory Opinion, the International Court of Justice recognized “cardinal” principles of international humanitarian law. One such IHL principle recognized by the ICJ is distinction, which requires all parties to an armed conflict to distinguish between combatants and non-combatants, including to never make civilians the target of attack and to never use weapons that are incapable of distinguishing between civilian objects and military objectives. IHL does not render every civilian causality in armed conflict per se unlawful. It bears emphasis, however, that IHL prohibits "[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." In addition, the Rome Statute of the International Criminal Court makes “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” a war crime in both international and non-international armed conflicts.

Blog Tags:

ICJ

ICC

War Crimes

Afghanistan

Distinction

AIHRC

UNAMA

JAMA Paper on Sexual Violence in the Democratic Republic of Congo

Dustin Lewis — Fri, 13 Aug 2010 19:42:19 +0000

Blog Type:

IHL in Action

A paper published in Volume 304, No. 5, of the Journal of the American Medical Association (JAMA) spotlights sexual violence committed during armed conflict in (or more generally in conflict-affected areas of) the Democratic Republic of Congo. Based on interviews of 998 households, the report concludes that nearly 40% of women and more than 23% of men reported suffering sexual assault. Humanitarian relief personnel have already started responding to the report’s findings.
In June 2009, HPCR published a “Primer” on sexual violence and international humanitarian law. IHL prohibits sexual violence in both international and non-international armed conflicts. Acts of sexual violence—including rape, forced marriage, and forced nudity—have been prosecuted in domestic and international criminal tribunals. Partly depending on the situational predicate and on the intent of the perpetrator, acts of sexual violence may serve as the constituent elements of war crimes, crimes against humanity, or genocide. As the JAMA report confirms, perpetrators of sexual violence during armed conflict include not only men but also women, and survivor-victims of sexual violence include not only women but also men.

Blog Tags:

War Crimes

DRC

Sexual Violence

Crimes Against Humanity

Genocide