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Humanitarian Principles and International Law 1 Humanitarian Principles and International Law Protect: To defend or guard from danger or injury; to support or assist against hostile or inimical action; to preserve from attack, persecution, harassment, etc.; to keep safe, take care of; to extend patronage to: to shield from attack or damage.1 The concept of protection is an ancient one, cited liberally in the Hebrew Scriptures and later in the New Testament, the Koran, and other religious writings. The word “protect” comes from the Latin protegere, meaning to shield, cover, protect, defend. Over the ages in Western civiliza- tion, the term has been used in various ways: God’s protection, royal protec- tion, diplomatic protection, self-protection, protection under the law, and, more recently, equal protection, trade protection, consumer protection, social protection, environmental protection, copyright protection, and so on. “Protection” is a nice word, a noble word. It is used by historians, politi- cal scientists, anthropologists, lawyers, politicians, and even theologians with somewhat different meanings. But it always has a positive connotation. Since the establishment of the modern international system based on nation-states, usually dated from the Treaty of Westphalia in 1648, it is a rec- ognized responsibility of states to protect their citizens from harm, to defend them from danger, to save them from persecution—in short, to keep them safe. The ability to protect one’s citizens is intrinsic to the very definition of a state. If a state cannot protect its people, it has failed as a state.2 But there are times when states are not able to protect all of their people and when international law—particularly international humanitarian law, human rights law, and refugee law—provides for protection by others. Most recently the 2005 World Summit adopted the doctrine of “responsibility 1 01-2137-6 ch1.indd 1 1/31/11 5:46 PM 2 Humanitarian Principles and International Law to protect,” which affirms the centrality of the state as the protector of its people but also sets out a series of measures to be taken by the international community when a state is unable or unwilling to protect its citizens. This book focuses on the understandings and practice of protection in the international humanitarian system, but humanitarians have no monopoly on the term. Protection has become central to UN discussions—and deci- sions—on peacekeeping. All but one of the eleven peacekeeping missions initiated in the past decade have included the protection of civilians in their mandate.3 Protection of civilians has become a UN-wide priority. Protection in the Humanitarian World The concept of protection was central to the development of international humanitarian law (IHL), the first component of the concept of protec- tion, which initially stemmed from the need to protect soldiers who were wounded, captured, or otherwise hors de combat. IHL was expanded in 1949 to include measures to protect civilians, and since then the International Committee of the Red Cross (ICRC), the guardian of IHL, has tried to pro- vide guidance on such thorny issues as distinguishing civilians from combat- ants and the question of the responsibility of nonstate actors to uphold IHL, including protection of civilians. ICRC also has moved to respond to new forms of warfare and has played a leadership role in the campaign to ban antipersonnel land mines. In other words, over the past 150 years or so, IHL has expanded its original remit to protect prisoners of war and wounded soldiers into a broad range of activities designed to protect civilians who are affected by but are not direct participants in conflicts. The development of a second fundamental component of the concept of protection occurred in the aftermath of the European wars of the twen- tieth century, when protection of refugees emerged as a response to the plight of individuals who had fled their countries because of those wars or because of persecution. Because their governments were no longer able to protect them, it was the responsibility of host governments and the inter- national community to do so. Just as the International Committee of the Red Cross became the guardian of international humanitarian law, the United Nations High Commissioner for Refugees (UNHCR) became the custodian of international refugee law. Still later in the twentieth century, the growing recognition that people who were displaced from their com- munities but remained within the borders of their countries also needed 01-2137-6 ch1.indd 2 1/31/11 5:46 PM Humanitarian Principles and International Law 3 protection led to the development of international norms for protecting internally displaced persons. A third component of the notion of protection comes from international human rights law. The Universal Declaration of Human Rights refers to “protection” ten times: “Human rights should be protected by law, “All are entitled to equal protection under the law,” and so on. In fact, much of the modern human rights movement is about expanding the scope of protec- tion: protection of the rights of racial and ethnic minorities, of children, of women, and of gay and lesbian people; protection of the cultures of indig- enous people; and so on.4 The expansion of the groups in need of protection paralleled the expansion of the understanding of human rights from its early, almost exclusive focus on the civil and political rights of individuals to its inclusion of the economic, social, and cultural rights of both individuals and communities. By the end of the 1990s, explicit reference to the protection of civilians emerged in UN Security Council resolutions. As universal human rights broadened to include more groups, so too the concept of protection expanded in human rights discourse. Protection meant not only physical protection of people from violence and legal protec- tion of refugees from deportation but also protection from hunger, illness, and discrimination. Similarly, one can trace the expansion of protection in the humanitarian field from protection of soldiers (hors de combat) to pro- tection of refugees, to protection of children in armed conflict, to protection of internally displaced persons, to protection of women against sexual and gender-based violence, to protection of civilians. The intersection of the concepts of protection, humanitarian response, and human rights is a close and mutually reinforcing one, although the actors in these three spheres often seem to function in their own particular “territories,” with few genuinely collaborative efforts. Protection in the Wider World It is useful before jumping into the historical development of concepts of protection and current practices to step back for a moment to look at the big-picture developments on the international scene. The current international order is in transition, and what the future order will be is unclear. There are new possibilities for global governance and renewed interest in multilateral efforts to address climate change, resolve conflicts, and hold war criminals accountable. On many different fronts, conceptual developments are occurring on parallel tracks, often without 01-2137-6 ch1.indd 3 1/31/11 5:46 PM 4 Humanitarian Principles and International Law much cross-fertilization, but all represent a desire to do more to protect peo- ple whose governments cannot—or will not—protect them. It is almost as if there is a universal yearning for a global system that can keep people safe. Development. The concept of economic development has expanded from the emphasis on national economic growth in the 1950s to include concerns about equitable distribution of resources; community empowerment; rule of law; environmental issues; and, most recently, human security. Human security moves away from the focus on national security to consider what causes individuals to feel secure. Although the concept remains a bit ambig- uous and is interpreted in different ways, it generally refers to “freedom from threat to the core values of human beings, including physical survival” but also to community, economic, environmental, food, health, personal, and political security5 and to health and access to education.6 The concept of human security, it is important to recall, originated with the United Nations Development Program, but it parallels the expanded notion of protection evident in both the humanitarian and human rights worlds. Security. Military approaches to security have broadened dramatically in recent decades, from launching interstate wars to responding to insurgen- cies, failed states, and terrorism. The U.S. military’s current emphasis on sta- bilization operations recognizes that issues such as rule of law and humani- tarian response are as important to security as combat operations. Security is not just about fighting and winning wars any more, it is about embracing a whole range of actions that are actually quite similar to those incorporated in the expanded notions of human security and human rights. “Winning hearts and minds” is seen as key to defeating insurgencies. In July 2008 the U.S. secretary of defense, Robert Gates, declared, “We cannot kill or capture our way to victory” in the long-term campaign against terrorism, arguing that military action should be subordinate to political and economic efforts to undermine extremism.”7 International Accountability. The movement to bring perpetrators of war crimes and other atrocities to justice gathered momentum in the 1990s, with the establishment of international tribunals in the former Yugoslavia and Rwanda, the prosecution of war criminals by domestic courts in other coun- tries, and the adoption of the Rome Statute in 1998, which was the basis for the establishment of the International Criminal Court. Such measures to increase accountability and establish new judicial mechanisms were not only intended to punish those guilty of war crimes, genocide, and crimes against humanity but also to deter combatants from committing mass atrocities and hence to protect civilians.
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