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Protection of Civilians Under International Humanitarian Law: Trends and Challenges1 Camilla Waszink August 2011

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Protection of Civilians Under International Humanitarian Law: Trends and Challenges1 Camilla Waszink August 2011 NOREF Report Protection of civilians under international humanitarian law: trends and challenges1 Camilla Waszink August 2011 Executive Summary This paper examines challenges faced example by deliberately operating from in ensuring the adequate protection civilian areas, feigning civilian status in of civilians during armed conflict in order to attack their adversary or directly accordance with international humanitarian attacking civilians. Military operations also law (IHL). increasingly take place in urban and other densely-populated areas, exposing civilians While IHL establishes a comprehensive to particular risks. In conflicts with more legal framework to protect civilians from political goals, maintaining legitimacy and the effects of military operations, this support among the civilian population stands in stark contrast to the situation is often essential to achieving both the that civilians in conflict-affected areas military and political objectives. The civilian face on the ground. Civilians account for population thus finds itself at the centre of a high proportion of the victims in most the conflict in many contemporary wars. contemporary armed conflicts, whether as an unintended result of the fighting or Camilla Waszink is senior advisor at the Norwegian Peacebuilding Resource Centre (NOREF). because they are deliberately targeted Before joining NOREF, she was a policy adviser in by belligerents. Even in situations where the Arms Unit of the International Committee of the parties are seemingly committed to the Red Cross in Geneva from 2002 through 2009, implementing their obligations under where she worked on a range of weapons and international humanitarian law issues, including IHL, military operations often result in international regulation of arms transfers, small high numbers of civilian casualties and arms availability and landmines. She has also widespread destruction of civilian property. worked as a researcher and consultant, including for the Small Arms Survey and the Centre for Several current conflict trends are Humanitarian Dialogue in Geneva, the Bonn International Center for Conversion, and the associated with increased civilian suffering, Program on Security and Development at the including the prevalence of internal armed Monterey Institute of International Studies. conflicts, often involving a range of armed She has published extensively on arms control actors with varying degrees of capacity and international humanitarian law, armed violence, post-conflict disarmament, and weapons and will to implement IHL. The frequently management in peace processes. She holds an MA asymmetric nature of such conflicts may in international policy from the Monterey Institute lead belligerents to resort to unlawful of International Studies and a BA in political science means and methods of warfare, for and law from the University of Oslo. 1 This paper was written at the request of the Norwegian Ministry of Foreign Affairs as a background paper for the initiative Reclaiming the Pro- tection of Civilians under IHL. I am grateful to Simon O’Connor (Norwegian Red Cross) for the considerable support he provided in preparing this paper, in particular the legal sections and references. I would also like to thank Benjamin de Carvalho (Norwegian Institute of International Affairs) for a draft paper prepared for NOREF on this subject. Many others also provided valuable comments and suggestions on previous drafts, including Mariano Aguirre, Annette Bjørseth, John Borrie, Bonnie Docherty, Knut Doermann, Robin Geiss, Peter Herby, Walter Lotze, Gro Nys- tuen, Lou Maresca, Sylvain Vité, Jean-François Quéguiner, Hilde Salvesen and Jonathan Somer. The views expressed in the paper are those of the author and should not be interpreted as reflecting the views of any other person or organisation. NOREF Report August 2011 This paper focuses on how parties to armed identified confirm the widely-held view conflicts – both states and non-state armed that the main obstacles to achieving groups – implement their obligations under adequate civilian protection relate not to IHL, in particular the rules on distinction, the inadequacy of the rules themselves, but proportionality and precautions that to the way in which these rules are applied are fundamental to protecting civilians during actual military operations and to during hostilities. Based on experiences deliberate non-compliance with the rules. from recent conflicts, it identifies a range of protection challenges that arise in The paper concludes by suggesting civilian contemporary warfare. harm in armed conflict can be broadly divided into three categories – unforeseen, In particular, it examines the difficulties incidental and deliberate civilian harm – of protecting civilians in urban and and that concrete and practical measures asymmetrical warfare situations, as well to reduce and minimise such harm can be as more general concerns related to the identified in each category. Finally, it calls choice of weapons and targeting decisions. for a more vigorous discussion involving It also looks at some of the ways in which both states and civil society of how to IHL is regularly violated, with civilians reduce the significant gap that exists being directly targeted in different ways, between the theory and actual practice of and what might motivate and cause such protecting civilians under IHL. abuses to take place. The challenges Abbreviations and acronyms AP I Additional Protocol I AP II Additional Protocol II CAR Central African Republic CCM Convention on Cluster Munitions CCW Convention on Certain Conventional Weapons DRC Democratic Republic of the Congo GC IV Fourth Geneva Convention ICRC International Committee of the Red Cross ICRC CLS ICRC Study of Customary International Humanitarian Law ICTY International Tribunal for the former Yugoslavia ISAF International Security Assistance Force IHL International humanitarian law UN United Nations US United States - 2 - Protection of civilians under international humanitarian law: trends and challenges Introduction of military operations. The 1949 Geneva Conventions Civilian suffering in war is not a new phenomenon. and the 1977 Additional Protocols constitute the Throughout history, civilians have been targeted by core of the legal framework regulating behaviour belligerents, who often have made no distinction in war, including for the protection of civilians and between combatants and civilians when fighting other persons that do not take part in hostilities (e.g. their enemies. Massacres, rape, torture, starvation, wounded, sick and captured combatants). Although enslavement, forced conscription and displacement significantly less detailed than the rules applicable to have all been common features of war at different international armed conflicts, Common Article 3 to times and in different places. Sometimes civilian the Geneva Conventions and Additional Protocol II2 suffering has been an unintended result of the establish rules for non-international – i.e. internal – fighting, and at other times it has been inflicted as a armed conflicts, imposing obligations on states and deliberate military strategy. non-state armed groups alike. Moreover, most of the fundamental rules pertaining to the protection of Civilians are affected in many ways by war, whether civilians are considered to be customary humanitarian as the direct victims of death, injury, rape and law in both international and internal armed conflicts, forcible displacement or as indirect victims through and binding on all states, whether signatories or not to conflict-induced increases in disease, hunger the relevant treaty, as well as non-state armed groups. and malnutrition. The impact and experience of war will not be the same for all civilians, but can IHL has proven to be an adaptable legal framework vary enormously among the members of different with additional rules being adopted in response to groups, e.g. depending on whether they are men or new developments. A case in point is the adoption women, young or old, or living in an urban or a rural of the first two Additional Protocols in 1977, partly area. Not least, it will depend on the conduct of the in response to the humanitarian concerns arising combatants and the extent to which they endeavour from internal armed conflicts and wars of national to target or protect civilians during hostilities. liberation. The treaties prohibiting anti-personnel mines and cluster munitions are more recent examples. While wars have invariably been accompanied by suffering for civilians and soldiers alike, there As the nature of warfare continues to evolve, new have almost always been certain limits on warfare protection needs may arise. A recent International – i.e. norms establishing the types of actions that Committee of the Red Cross (ICRC) study identified are acceptable or unacceptable in war – including several specific gaps or weaknesses in the existing notions of who should and should not be targeted. legal framework, particularly as regards non- Even if these norms have varied greatly, when international armed conflicts, which is the dominant certain groups have been spared from attack, form of conflict today.3 Due to the current prevalence they have often included those considered to be of internal armed conflicts, the interaction between particularly “innocent”, “vulnerable” or “weak”, IHL and international human rights law is also such as children, women and the elderly. As the becoming a matter of increased importance
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