Protection

Bertrand Ramcharan. 5/2005. OPS Issue 3: The United Nations High Commissioner for Human Rights and International Humanitarian Law.Abstract

International human rights law and international humanitarian law are parallel and complementary branches of international law with their distinct and distinctive supervision arrangements. In the conflicts taking place in the world today, both the institutions of international humanitarian law and international human rights law are called upon to apply and uphold international humanitarian law. The International Committee of the Red Cross has the lead responsibility internationally for watching over the implementation of international humanitarian law, while the United Nations High Commissioner for Human Rights, the Commission on Human Rights, its subsidiary bodies, and the human rights treaty bodies have the lead responsibility for overseeing the implementation of international human rights law. Basic human rights are being violated on a widespread scale during armed conflicts, and international human rights law operates in parallel alongside international humanitarian law in situations of armed conflict. Violations of international humanitarian law, especially as regards civilians, women and children, are violations of basic human rights with which the High Commissioner for Human Rights must be concerned as part of her responsibilities for the worldwide promotion and protection of human rights. Situations may arise increasingly when a High Commissioner for Human Rights is called upon to react to human rights violations in situations of armed conflict. In such situations, a High Commissioner is perforce required to address violations of international humanitarian law. This calls for the exercise of care and discernment on the part of the High Commissioner. Situations must be handled on the basis of principles, first of international humanitarian law, second of international human rights law, and principles of coexistence regarding institutions of international humanitarian law and international human rights law. Specifically, it is fundamental that the High Commissioner be cognizant of and act in the spirit of the principles pervading international humanitarian law. Generally, it is imperative upon a High Commissioner to help discharge the duty of protection and the responsibility to protect. 

Kenneth Watkin. 1/2005. OPS Issue 2: Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy.Abstract

Combatancy has throughout the history of organized warfare been an exclusionary concept. Distinguishing between combatants and civilians has long represented an important aspect of warfare and has been recognized as the indispensable means by which humanitarian principles are injected into the rules governing conduct in war. Yet the protection of participants in warfare under international humanitarian law remains characterized by a certain level of uncertainty as regards the codified provisions for combatants and civilians. Who qualifies as a combatant is a question that has plagued those seeking to establish a comprehensive normative regime governing participation in hostilities. Acting on behalf of a state has constituted the primary means of attaining combatant, and therefore legitimate, status. As a result, a significant number of participants in warfare do not meet the established criteria and are, consequently, considered ‘illegitimate’ or ‘unlawful.’ This includes those fighting in international armed conflict as well as groups engaged in armed conflict not of an international character. The uncertain status of these ‘illegitimate’ warriors is evidenced by the variety of terms used to describe them. The traditional dual privileged status approach of dividing a population into combatants and civilians is only as effective as the accuracy with which the definition of ‘combatant’ is established and to the extent there is a clear understanding of when civilians lose the protection of their status by participating in hostilities. Recently, the question of combatancy and the protection of captured enemy personnel has gained prominence due to the decision of the United States government in 2002 to deny prisoner of war status to the Taliban and Al Qaeda fighters. Similarly, there is considerable controversy as to the standard of treatment to be applied to captured unlawful combatants. Historically, a consistent result of being determined to be an unauthorized participant in hostilities has been harsh treatment at the hands of the captor. Questions are asked whether civilian participants in combat are a type of ‘illegal’ combatant, fall under civilian status, or merit their own status under international humanitarian law. The idea of an intermediate status is rejected by many analysts. 

Claude Bruderlein and Jennifer Leaning. 8/1999. “New Challenges of Humanitarian Protection.” BMJ, 319. Read PublicationAbstract

The fourth Geneva Convention, adopted 50 years ago, on 12 August 1949, describes the actions that warring parties must take to protect civilian populations from the worst excesses of war. Building on the concept developed in the previous three conventions—that certain activities and people, especially civilians, can be seen as hors de combat—the fourth Geneva Convention defines in detail the many ways in which civilians must be dealt with to shield them from the direct and indirect effects of conflict between combatant forces. Among the responsibilities that this convention sets for the warring parties are explicit actions that would grant medical personnel, and all aspects of the medical enterprise, complete protection from interference or harm. This neutral status for medical relief (and, by extension, all humanitarian aid) rests on the reciprocal assumption that those who deliver this relief are practising in accord with their professional ethics and will take specified steps to maintain their neutral posture vis à vis the warring parties.

Claude Bruderlein and Pierre Gassmann. 5/2006. Managing Security Risks in Hazardous Missions: The Challenges of Securing United Nations Access to Vulnerable Groups.Abstract

Over the last decade, the United Nations (“U.N.”) has taken a central role in the international community’s response to the consequences of disasters and armed conflicts. Increasingly, international strategies to cope with instability and armed conflicts rely on the deployment of the staff of U.N. agencies in the midst of armed hostilities to provide urgently needed humanitarian assistance to threatened populations. Furthermore, reconstruction and development activities traditionally undertaken in peaceful environments have also become an integral part of stabilization efforts in situations that are far from secure.

Marco Sassòli. 6/2004. Legitimate Targets of Attacks Under International Humanitarian Law.Abstract

According to an uncontroversial principle of customary international humanitarian law (IHL), parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives. In order to spare civilians and the civilian population from hostilities and their effects, it is essential to define who and what may be attacked. The first rule regarding attacks (by acts of violence2 ) is that the intended target must be a military objective. Once a military objective is the target, under additional rules, which are not discussed here, the attack may nevertheless become illegal if excessive collateral damage affecting civilians or civilian objects must be expected. Furthermore, even when attacking a lawful target, precautionary measures to spare civilians have to be taken. While the main aim of the law is to protect persons, it is appropriate to discuss first what objects may be attacked. This permits to clarify the criteria, which make targets legitimate. In addition, attacks on objects involve the greatest danger for persons who are beyond any doubt civilians. 

Phuong Pham, Patrick Vinck, Nehal Bhuta, and Nida Alahmad. 5/2004. Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction.Abstract

In attempt to move beyond a past marked by conflict, terror, and violence, Iraq has many hurdles to overcome in achieving social reconstruction and transitional justice. This study reflects the views of Iraqis regarding past human rights abuses, justice and accountability, truth-seeking and remembrance, amnesty, reparations, and reconciliation. Using this data, the study makes recommendations on how Iraq may address the needs and wants of its citizens for fairness, accountability, and justice, while simultaneously prioritizing a peaceful future.

Allan G. Hill, Cari Jo Clark, Ismail Lubbad, and Claude Bruderlein. 10/2006. “Hope and Despair over Health in Gaza.” BMJ, 333.Abstract

The Israeli re-invasion of Gaza this July has redrawn the world’s attention to the dire straits of the population living in the Gaza Strip. There, within an area the size of the Isle of Wight, 1.4 million people live without free access to the outside world. Contrary to international hopes, the Israeli decision to withdraw from Gaza in September 2005 has led to increasingly tight control over the movement of goods and people. The destruction of the Gaza power station in addition to the damage to bridges, roads, and other infrastructure can only worsen the plight of Gazans in the coming months.

Vincenzo Bollettino. 10/2006. Designing Security.Abstract

Humanitarian organizations operate in increasingly hostile environments. Although authoritative statistics are scarce, anecdotal evidence suggests that aid workers face life-threatening risks that are exacerbated by the growing number of humanitarian organizations operating in the field with varying mandates, without common professional security standards and with limited success with inter-agency security coordination. The ability of humanitarian organizations to fulfill their mandates in the future will depend in part on their individual success in improving internal security management practices and in finding ways to coordinate their efforts on building common security standards and security coordination across agencies. To meet this challenge, humanitarian organizations must implement improved security management methods and find ways to coordinate their security operations and planning. Despite broad acceptance of the need to develop better security management and coordination, many humanitarian organizations remain ambivalent about coordinating their security activities and few have instituted robust measures for improving their own security management practices. Further, efforts to improve security management practices are hampered by a critical lack of basic empirical knowledge about the field security environment. In discussions about humanitarian staff safety and security, the least common denominator continues to be cumulative anecdotal evidence provided by the many security personnel working for humanitarian organizations in the field. This policy brief reviews the literature on humanitarian organization security management, highlighting common misconceptions about the field security environment, reviews the main structural and procedural issues impeding more effective security management, and illustrates why current initiatives to improve security management practices will remain only partial successes if they do not include a serious effort to replace anecdotal reporting on the field security environment with systematic collection and analysis of field security data. It argues that staff security requires a common professional approach based on sound security expertise adapted to meet the operational needs of humanitarian organizations. A model is developed for creating a network of security professionals responsible for guiding the design and implementation of common security standards and security information sharing protocol.

Claude Bruderlein. 2006. Towards a Common Security Framework: Securing Access and Managing Risks in Hazardous Missions.Abstract

International agencies are facing increasing levels of threats against their staff and activities in many of their operations. Since the end of the Cold War, these agencies, intergovernmental and non-governmental alike, have been called to work more intensely in conflict areas.1 These areas have become singularly more dangerous in recent years, exposing staff to greater risks. The threats of attack, as well as recurring levels of criminal violence, are now part of the daily life of international agencies’ workers in many of these situations, hindering their work and limiting their access to people in need. Although significant resources have been invested recently in building the security capabilities of international agencies, the escalation in security threats has not been matched with the development of corresponding institutional strategies to mitigate operational risks and reduce the exposure of international agencies. Despite serious flaws in existing security systems, international agencies have been inclined to expand their security capacity at a technical level rather than reviewing the relevance of their security strategies. As a response to the attacks against United Nations (UN) headquarters in Baghdad and other field missions, the United Nations is planning to expand significantly the capacity of the UN security system by creating a Directorate of Security, which will centralize all UN security systems, and by adding a number of staff and layers of technical responsibilities to an already bureaucratic and over-procedural security apparatus. While most operational managers agree that the security environment of UN agencies has evolved considerably over the recent years, this significant expansion in security capabilities is being considered without a clear and proper understanding of the types or sources of threats the UN will face in the coming decades.2 There are few discussions on global and local threats against UN operations or the role that agencies can play to mitigate exposure to risks. Similarly, other agencies, such as the International Committee of the Red Cross (ICRC) or Médecins Sans Frontières (MSF), are increasingly tying their security response to conservative interpretations of their mission — relying significantly, in the process, on the neutral character of their activities and the acceptance of the communities. Many organizations, however, fail to acknowledge the changing perceptions of international assistance in some areas of the world and the changing profile of the security threats that endanger not only their operators but the recipient communities as well. For these agencies, the current security developments represent a major challenge 

Marco Sassòli. 2/2006. Transnational Armed Groups and International Humanitarian Law.Abstract

The concept of ‘transnational armed groups’ has been used increasingly since September 11, 2001 by those who consider the ‘war on terror’ to be an armed conflict and who wish to apply the laws of armed conflict, called international humanitarian law (IHL), to that conflict (rather than human rights domestic legislation and international law on cooperation in criminal matters). In this debate, it is often claimed that IHL, as it stands, is inadequate to cover such a conflict and such ‘transnational armed groups’. This paper discusses, firstly, when IHL applies to transnational armed groups. Concretely, this involves the question of whether, and to what extent, the ‘war’ against Al Qaeda can be classified as an armed conflict. It is argued, that under international humanitarian law, the ‘war on terror’ must be split into different components. In some cases, the law of international armed conflicts applies. In others, the law of non‐international armed conflicts applies. In most situations of the ‘war on terror’, IHL does not apply at all. Secondly, this paper looks at the related issue of what determines the existence of an armed group as an addressee of IHL of non‐international armed conflicts. According to what criteria can Al Qaeda be considered an armed group for the purpose of making IHL applicable? When are members of such a group covered by IHL, even though said group is not fulfilling those identified criteria? Thirdly, the rules of IHL covering an armed conflict between a transnational armed group and a state are summarized, in particular the status and treatment of members of such groups. Most importantly, this paper examines whether and how the existing rules of IHL should or could be adapted to (more) adequately cover transnational armed groups. In this context, few concrete proposals suggesting which rules should be adapted, and in what sense, were found. Nevertheless, as a fourth issue, this paper tries to identify certain areas where the existing IHL of non‐international armed conflicts is not entirely adequate because of the extraterritorial character of the fight against transnational armed groups. Fifth, skepticism is expressed about the possibility of extending IHL and of applying it beyond armed conflicts as currently defined when transnational groups are involved. Sixth, as for the mechanisms of implementation, several proposals are brought forward regarding ways by which respect for existing (or any new rules of) IHL by transnational or any other armed groups can be improved. It is argued, centrally, that if armed groups are addressees of IHL, it is indispensable to involve them in the development and implementation of the rules. Finally, the article explores ways, obstacles, and the risks of developing new rules and mechanisms of IHL specific to armed conflicts with transnational armed groups. The author remains skeptical about the realism and utility of any attempt to develop specific rules for such conflicts.

HPCR. 4/2006. Transnationality, War and the Law - Roundtable Report.Abstract

On October 30, 2005, the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR) brought together a select group of international experts for a discussion on the theme of “The Transformation of Warfare, International Law, and the Role of Transnational Armed Groups.” The meeting was hosted by the Geneva Center for Security Policy in their offices in Geneva, Switzerland. This project grew out of a research interest identified at the High-Level Informal Expert Meeting on International Humanitarian Law at Harvard University in June 2004 which gathered representatives of twenty-eight governments and international organizations, as well as distinguished scholars, to examine the legal and policy challenges faced by international humanitarian law (IHL). The purpose of the meeting in Geneva was to explore the changed landscape of transnational wars and the prominent geopolitical role played by transnational non-state armed groups as well as their impact on interpretations and responses of international law to the new warfare. Built around three pillars of changing war, changing actors, and static law, the discussion in Geneva was organized along sessions on the transformation of war, the regulation of new conflicts, the current gaps and limitations of international humanitarian law, and the challenge of compliance and protection in the new environment. Starting from the decolonization wars of the twentieth century, armed conflicts have been departing gradually from the classical, state-centered paradigm embodied in the Geneva Convention of 1949 to the current framework in which non-state actors have acquired a larger, if not yet central, role. That fluctuation constitutes a bending of the traditional tactics of war brought about by the rise of comparatively weaker non-state actors and a modification in the space taken up by the new wars. Participants to the Geneva meeting stressed that non-state actors have been fighting states throughout the history of the state. However, in previous eras they fit more clearly into the realm of domestic law enforcement, as states sought to quell “internal disturbances.” The new conflicts are driven across state borders and represent a true challenge in terms of regulating the behaviors of both transnational non-state armed groups and the corresponding territorial and extraterritorial response of states.

Colonel K.W. Watkin. 1/2005. Combatants, Unprivileged Belligerents and Conflicts in the 21st Century.Abstract

At the dawn of the 21st century international humanitarian law is facing a number of significant challenges. The events since 11 September 2001 in particular have focused a bright spotlight on issues such as: the law governing conflict between states and nonstate actors; the criteria to be applied for qualification as a combatant; the identification and targeting of the enemy; and the status and treatment to be afforded to captured “noncombatants” who participate in hostilities. The campaign on terrorism is in many ways a reflection of a broader transformation of modern conflict. The conduct of asymmetric warfare, which has been defined as “acting, organizing and thinking differently than opponents in order to maximize one’s own advantages, exploit an opponent’s weaknesses, attain the initiative, or gain greater freedom of action” is challenging traditional notions of armed conflict. 

The transnational reach of information warfare, the growth of global terrorism, the blending of domestic and international criminal acts and easier access to weapons of mass destruction have raised the stakes in terms of the types of threats posed to states and their citizens. The ability of both states and non-state actors to act asymmetrically has been enhanced by the technological leap into the information age and the so-called revolution in military affairs. The capacity of international humanitarian law to adequately address conflict in its modern form is being grappled with by government officials and legal practitioners, undergoing judicial review, carefully being analyzed by legal scholars and receiving close scrutiny by the media. In meeting its goal of limiting the effects and suffering of armed conflict international humanitarian law shares many of the same principles and concepts as human rights. However, international humanitarian law differs from human rights law in its requirement to interface with “military necessity”. At the heart of military necessity is the goal of the submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. It justifies the application of force not prohibited by international law. The balancing of military necessity and humanity is often the most challenging aspect of finding agreement on the norms of international humanitarian law. In balancing these two concepts the requirement to distinguish between those who can participate in armed conflict and those who are to be protected from its dangers is perhaps its most fundamental tenet. A careful analysis shows that much of the discussion about the adequacy of international humanitarian law is centered on the principle of distinction. 

William Boothby. 11/2005. Cluster Bombs: Is There a Case for New Law?.Abstract

The numerous unexploded bomblets, or submunitions, discarded on the battlefield as a result of cluster munition attacks have attracted widespread criticism, particularly from non‐governmental organizations, prompting suggestions that new international law arrangements should be agreed to address the problem. These ‘dud’ bomblets may pose a post‐conflict risk for troops and civilians alike. The humanitarian concerns raised by this hazard have been recognised for a number of years. An important debate is now under way, however, to try to identify a way of addressing the problem effectively while recognising the essential defense needs of states. Working out which, if any, developments in the law are appropriate to such a problem necessitates an analysis of existing, relevant law. There are numerous general legal principles that limit the weapons which states are permitted to employ in armed conflict. There are also important treaties applicable to particular technologies. There is, then, the legal obligation accepted by many states to review weapons plans to ensure they comply with applicable law. Of particular relevance to the cluster munition debate is the Conventional Weapons Convention (CCW), a framework treaty under which individual protocols have been negotiated to address such diverse technologies as mines and lasers. Following a seminal meeting in Nyon, Switzerland in September 2000, CCW member states started to discuss the problem of unexploded and abandoned explosive ordnance. Having clarified the nature of the problem, they negotiated a Protocol to the Convention. Its focus is the marking, clearance, removal, and destruction of explosive remnants of war.

Theresa Stichick and Claude Bruderlein. 5/2001. “Children Facing Insecurity: New Strategy of Survival in a Global Era”.Abstract

This paper explores the nature of children’s security within the context of modern threats from globalization and new forms of warfare. It analyzes the sources of insecurity faced by children and the survival strategies they and their families employ as a result. Through a number of case-studies, it questions the usefulness of assistance programs that focus on the physical needs of children in isolation of their social and communal environment. As children are in a constant state of development, protecting their security requires more than support against physical harm. The paper argues that four dimensions of security are important for the protection of children in times of war: physiological necessities, safety, communal relationships and opportunities for personal development. Efforts to promote children’s security must involve analysis of these core dimensions and treat the coping strategies of children and their families as a roadmap for protection. The focus of this paper is children affected by war but the analysis also applies to children at risk in other circumstances, from street children, to those living in extreme poverty. Children’s security is particularly at risk in those countries under economic embargo, afflicted by armed conflict or by extreme poverty. Today’s threats take place in the context of wars sustained by the import of small arms and light weapons and are often fought over the control of valuable resources – oil, minerals, timber, gems - whose major markets are in the North. The dislocation caused by these wars fragments families and isolates children. While few of these threats are new, their impact on the life and security of children has increased with the globalization of trade, migration and communication. Civilians, especially children and their families, have been forced to develop new coping mechanisms for their changed situations. Children can no longer be viewed merely as the victims of war. They have taken on new roles as heads of households, child combatants, student leaders and actors in peace building. This paper explores how globalization affects the security of children, particularly in conflict areas. It presents a framework to structure the core dimensions of children’s security and discusses how the survival strategies employed by families and children when protections fail may be used as a signal for improving security conditions for children. The paper was produced for the Human Security Network meeting in Amman, 11-12 May 2001, with a contribution from the Canadian Department for Foreign Affairs and International Trade.

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