Improving Protection of Civilians in Armed Conflict

Improving the Protection of Civilians in Situations

of Armed Conflict

2011 MAYFELLOWS

WORKING PAPER

Contributions by: Paul Bonard

Bonnie DochertyGloria Gaggioli

Dan KuwaliSadiq Syed

Felisa Tibbitts

3Table of Contents

Introduction Felisa Tibbitts

Adapting to Armed Conflict: Human Rights Organizations in Times of War Bonnie Docherty

Human Rights in Situations of Armed Conflict Sadiq Syed

Defending the Defenseless: Questions of Mandate and Capability to Protect Civilians in the Democratic Republic of Congo Dan Kuwali

Three Short Proposals to Enhance Protection of Civilians in Armed Conflict Paul Bonard

Law as a Tool to Improve the Protection of Civilians in Armed Conflict Gloria Gaggioli Biographies of Contributors

Improving the Protection of Civilians in Situations of Armed Conflict 2

Improving the Protection of Civilians in Situations of Armed Conflict

A Carr Center Working Paper

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INTRODUCTIONFelisa Tibbitts

Executive Director, Human Rights Education AssociatesFellow, Carr Center for Human Rights Policy 2009-2010

This working paper identifies challenges as well as mechanisms for improving the protection of civilians in situations of armed conflict. This paper is comprised of individually authored discussion papers developed in conjunction with a Carr Center on Human Rights Policy panel “Responsibility to Protect or Irresponsibility to Neglect? Challenges and promising practices in monitoring and investigating human rights violations in situations of armed conflict, with a focus on Africa,” which took place on March 3, 2009.

The panel consisted of individuals who have worked in situations of armed conflict, including representatives from the United Nations, military, the NGO sector, the International Committee for the Red Cross (ICRC) and academia.

This working paper contains the following sections:“Introduction” *Felisa Tibbitts“Adapting to Armed Conflict: Human Rights Organizations in Times of War” *Bonnie Docherty“Human Rights in Situations of Armed Conflict” *Sadiq Syed“Defending the Defenseless: Questions of Mandate and Capability to Protect Civilians in the Democratic Republic of Congo” *Dan Kuwali“Three Short Proposals to Enhance Protection of Civilians in Armed Conflict” *Paul Bonard“Law as a Tool to Improve the Protection of Civilians in Armed Conflict” *Gloria Gaggioli

*Brief author biographies are presented at the end of this paper.

BACKGROUND

Civilians face a variety of threats to their persons during armed conflict. These can be the result of intended or indiscriminate attacks carried out by state and non-state actors. The worst cases can be classified under the law as war crimes, crimes against humanity, or even genocide. Such targeting includes not only killing, but also rape, torture and, in relation to property, looting and destruction of homes. Long-term effects include conflict-related deaths from hunger or disease and poor standards of living for refugees or internally displaced persons.

Monitoring and investigation is carried out in order to establish the nature and degree of violations and who is responsible. This information can be used to mobilize short-term responses from duty-bearers/governments – in some cases with pressure applied from the international community on the basis of reports released. Evidence compiled in monitoring and investigation reports can also be applied in justice forums (such as International Criminal Court (ICC)


investigations) and to identify long-term responses to reduce civilian casualties and deaths in situations of armed conflict.

Organizations carrying out monitoring and investigation can include: - governments;- peacekeeping forces comprised of police and military personnel1; - independent international organizations, such as the International Committee of the Red Cross (ICRC)- human rights NGOs, such as Human Rights Watch;- individual members of civil society, such as lawyers and civilians, and- journalists.

The Carr Center panel was organized on the basis of the following assumptions:

• Effective monitoring and investigation is essential for recognizing victims, bringing international attention to widespread human rights and international humanitarian law (IHL) violations and facilitating response strategies.

• Monitors in situations of conflict face special challenges. Effective monitoring and investigation will depend upon a range of conditions, including access to information in a timely manner, clear procedures for monitoring and investigation, personal security for investigators and sufficiently trained personnel.

• Strategies can be developed to improve monitoring and investigation carried out by peacekeepers as well as other actors.

• Moreover, additional strategies related to the mandate of peacekeepers can be undertaken in order to improve the protection of civilians in situations of conflict.

HIGHLIGHTS OF RECOMMENDATIONS

This paper will address two primary mechanisms used for the protection of civilians during situations of armed conflict: (1) peacekeeping operations, and (2) monitoring and investigation activities, including the short-term work of NGOs and the International Committee for the Red Cross (ICRC) and the longer-term work of these organizations along with legal institutions such as fact-finding commissions and Special Rapporteurs. Strategies for strengthening the work of these mechanisms are explored collectively in the contributions to this Issue Paper.


1 In Africa, for example, peacekeepers sent by regional organizations such as the African Union as well as the United Nations.

Key recommendations emanating from the panel and its associated papers are as follows.2

Recommendation 1. Mandates for peacekeeping forces should be clearly worded and minimize the possibility of differing interpretations, for example, of “rules of engagement” and “imminent threat”. Different interpretations take place within peacekeeping forces on the basis of rank and country of origin. There can also be different interpretations between the UN Department of Peacekeeping Operations (DPKO) and peacekeeping forces. Explanations of the mandate might include illustrative scenarios so as to reduce the possibility of multiple interpretations.

Recommendation 2. The United Nations should develop a comprehensive, operational doctrine for explicitly protecting civilians during periods of armed conflict. DPKO mandates should also reflect the protection of civilians on the basis of jus in bello. Mandates for peacekeepers operating in situations of armed conflict should incorporate IHL, human rights law and a concurrent mandate to protect all civilians.

Recommendation 3. Human rights organizations should expand their mandates to encompass IHL. They may also need to apply customary international law when dealing with internal armed conflicts and non-state armed groups.

Recommendation 4. There should be an improved preparation of human rights officers, NGOs and independent researchers. Trainings should include content on human rights and international humanitarian law, and relevant national laws. Trainings should impart practical monitoring and investigation skills such as taking security precautions, interviewing, using interpreters, interpreting physical evidence, and introduce researchers to relevant armed conflict and military issues. Principles to incorporate in the trainings include “do no harm”, maintaining confidentiality and being aware of local political/social/cultural issues.

Recommendation 5. Effective mechanisms should be set up for information sharing among monitoring bodies, including cooperative relations and exchange of information between peacekeepers and NGOs/ICRC. If possible, there should be joint monitoring initiatives between governments and civil society.

Recommendation 6. Monitoring and investigating bodies should think strategically about the reports that they generate. Preparation of press releases and briefing reports designed for immediate awareness raising and advocacy have differing strategic purposes than in-depth reports that can be used as evidence in justice forums (e.g., ICC investigations) and policy-making environments.

Recommendation 7. Existing laws that prohibit the violation of human rights and IHL need to be strengthened. Moreover, there should be an exploration of new legal mechanisms that would


2 The recommendations and opinions presented in this issue paper do not represent the views of the Carr Center for Human Rights Policy, the Harvard Kennedy School of Government or the authors’ organizations; they are those only of the authors themselves.

enforce application of these sanctions, for example, a thematic resolution from the Security Council on the protection of civilians in situations of armed conflict. Such a resolution would need to be reflected in actual mandates, which is what commanders in peacekeeping units respond to.

Recommendation 8. The United Nations might strengthen the use of legal institutions such as the UN Fact-Finding Commission and Special Rapporteurs in carrying out monitoring and investigation in situations of armed conflict.

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ADAPTING TO ARMED CONFLICT: HUMAN RIGHTS ORGANIZATIONS IN TIMES OF WAR

Bonnie DochertyHuman Rights Watch

Harvard Law School’s International Human Rights ClinicCarr Center, NSHR Fellow, 2009-2010

During times of armed conflict, investigators flock to the scene to report on war’s effects on civilians. In recent years, many human rights organizations have expanded their mandates to cover violations of international humanitarian law (IHL), or the laws of war. This process involves a substantive shift, most obviously because IHL permits killing others in circumstances where human rights law does not. Equally important, however, is the methodological shift required to document violations during armed conflict. Wartime researchers face challenges of access, security, information, and time that stem from the different operational environment. After gathering the necessary information, they must consider multiple possibilities for presenting their findings in order best to achieve their advocacy goals.

Civilians face a variety of threats to their persons and property during armed conflict. Intentional targeting of civilians is the most egregious violation of IHL; the worst cases can be classified under the law as war crimes, crimes against humanity, or even genocide. Such targeting includes not only killing, but also rape, torture, looting, and destruction of homes. It has been particularly common in internal, interethnic conflicts, such as in Bosnia, Darfur, and Rwanda.

Civilians can also be victims of less direct but nonetheless unlawful attacks. IHL prohibits as indiscriminate attacks that do not or cannot distinguish between civilian and military objects. Use of a poor targeting methodology with a precise weapon or use of an inaccurate weapon in a populated area exemplifies this type of attack. With regard to the latter, Afghanistan, Iraq, Lebanon, Israel, and Georgia experienced the devastating use of cluster munitions in cities, towns, and villages. These large weapons containing dozens or hundreds of smaller submunitions endanger civilians during strikes because of their wide area effect and afterwards because they leave behind explosive duds. Indiscriminate attacks that do not intentionally target civilians have often occurred in technologically advanced, international operations, for example, those in Iraq in 2003. Many armed conflicts, such as those involving Israel and Lebanon or Israel and Gaza, include both types of violations.

Human rights organizations send experienced field researchers to monitor and investigate these kinds of IHL violations. Armed conflict researchers need the same basic background as other human rights practitioners. They must have strong interviewing skills in order to gather testimony from a range of sources, including victims, witnesses, doctors, government officials, and military personnel. Fluency in a local language and an in-depth familiarity with the particular country involved are definite advantages, but they are less common among researchers


who focus on this kind of thematic work and thus have to travel to many places around the world. In such cases, they must know how to work with a country researcher and/or translator who can provide an awareness of political, social, and cultural issues. When responding to crisis situations, researchers must be able to write clearly and quickly to get the information out. Back home, they must follow up on and analyze their findings carefully for more comprehensive reporting. Researchers must understand IHL as well as human rights law, and many are in fact lawyers.

Those who research the conduct of war also need a special skill set to document violations. First, they must possess strong powers of observation and the ability to interpret physical evidence. A knowledge of types of weapons, how they work, and the damage they cause can be crucial to determining what happened in a particular incident. For example, weapons debris and nearby destruction can reveal whether a cluster munition or unitary weapon was used and in turn help identify which belligerent fired it. Second, researchers need expertise in armed conflict and military issues, such as the means and methods of war. They should be able to speak the military’s language in order to win the trust of sources from armed forces, ask better questions, analyze what they find, and write authoritatively about it. Third, researchers must understand how to operate and take necessary precautions in dangerous environments. They must learn to assess security reports from a variety of sources, including the United Nations, the media, and other nongovernmental organizations (NGOs); evaluate the situation on the ground; maintain a low profile; handle checkpoints; and develop an emergency evacuation plan. It is the general policy of human rights organizations not to travel with armed guards because doing so can make them targets of attacks.

Once sent to the field, armed conflict researchers from human rights organizations face numerous challenges. Access to the battlefield, essential for thorough documentation, is one of the biggest obstacles. While researchers can gather some information from refugees or internally displaced persons in camps, they need to visit the scene of the incident, both to talk to witnesses still on site and to analyze physical evidence in situ. Researchers use different ways to gain access. In some cases, they obtain permission from the armed forces in power to enter a conflict or post-conflict zone. Although it is important to maintain independence once inside, this coordination can increase security. In other cases, traveling under the radar is necessary.

Security concerns can block a mission even if researchers attain access. As explained above, they need to take a series of personal precautions. They also need to be attuned to the security of their interviewees, especially in cases of ongoing conflict. Witnesses who speak against belligerents are sometimes vulnerable to reprisals. Researchers must protect these interviewees’ identities not only in future publications but also during their investigations. In conflicts where reprisals are likely, withholding names is common practice.

Ensuring the accuracy and completeness of the information gathered also poses challenges. Researchers must have an awareness of interviewees’ knowledge. For example, witnesses may be unfamiliar with methods of warfare. Some describe any weapon that falls from the sky as an


airdropped bomb. They do not understand that with today’s technology, ground-launched munitions, fired from great distances, also fall from the sky. The need for translation, as in the case of all human rights investigations, can inhibit the gathering of precise information so researchers must instill in the translator the importance of repeating interviewees’ statements verbatim. Witnesses are often scared during ongoing conflict and may not feel free to speak openly and truthfully; therefore winning their trust by showing respect and ensuring anonymity is crucial. Researchers face problems of access to as well as quality of information. In some countries, such as Afghanistan, it can be difficult for men to interview female witnesses, and in many places rape victims are reluctant to talk because they are subject to social stigmatization. Deploying female researchers can help in both these situations. With regard to official information, armed forces often block its public dissemination on the grounds of national security. As a result, researchers have to rely more heavily on witness testimony and physical evidence, and careful field documentation becomes even more important.

Because of the urgency of stopping unlawful killing and the ephemeral nature of some evidence, time is another factor in investigations of armed conflict. If the research mission occurs during the conflict itself, human rights organizations often want to publicize their findings as soon as possible in order to change the conduct of the belligerents. If the mission is a post-conflict one, researchers still need to arrive on scene as quickly as possible. Otherwise, physical evidence will disappear, memories will fade, and the troops on the ground will depart.

The challenges of doing human rights work during war do not end with the field research because organizations must shape it for publication. The first step is post-mission analysis. In particular, researchers must determine how to apply the law to their findings. For example, the treaty law for internal armed conflicts and non-state armed groups is limited so human rights organizations may apply customary international law to the findings of their investigations. In order to present a compelling case, researchers must also draw their legal conclusions judiciously, not pushing their allegations beyond the supporting evidence. Sometimes it is difficult to prove actions that seemed particularly egregious were unlawful. Because of national security restrictions on official information or lack of access to certain combatants, researchers may never know the intent behind an act of war, an element required for determining some IHL violations. Iraqi fedayeen regularly wore civilian clothes in 2003, but without proof that they intended to do so to deceive the enemy, it was very difficult to support claims of perfidy. In some cases, researchers may only be able to confirm a lesser violation, but they can call for further investigation by other bodies to determine if more serious crimes were committed. Depending on their goal, human rights organizations can choose a variety of formats to present the information they have gathered. If the goal is to influence an ongoing conflict, especially if it is expected to be a brief one, they tend to employ shorter documents that are quicker to produce. They can respond with frequent press releases that distill their most significant findings and call for immediate change. Researchers in the field can do interviews with print, radio, and television journalists to further spread their message. The organizations also produce concise publications, such as letters or briefing papers, aimed at governments or the international community. During


the January 2009 conflict in Gaza, for example, Human Rights Watch issued press releases from the field about both sides’ indiscriminate attacks and the humanitarian crisis, a letter to the UN Secretary-General Ban Ki-moon calling for an independent investigation, and a Q & A on white phosphorous, an incendiary munition that can seriously harm civilians especially if used in populated areas. This reporting raised awareness of the many violations committed during the conflict and increased pressure on the parties to change their conduct. The danger of this approach is that no one can acquire full information or do complete analysis for a daily news cycle, but the advantage is that it can help alter behavior in the short term.

If the goal is to influence the way war is fought in general, a longer, more detailed human rights report that builds on work done during the armed conflict is a powerful tool. Researchers can use these reports to advocate in the domestic and/or international sphere. Human Rights Watch’s in-depth, post-conflict reports on cluster munition use in Afghanistan, Iraq, and Lebanon contributed to the creation of the new Convention on Cluster Munitions in 2008, which entered into force on August 1, 2010. As of June 20, 2011, it had been signed by 108 states and ratified by 57. Critics may argue that such reports take too long to produce, but their wealth of documentation and deeper analysis can have greater influence on governments and armed forces. A US military officer told Human Rights Watch that he made its report on the conduct of war in Iraq in 2003 required reading for all his subordinates. A comprehensive report is also more useful for international criminal tribunals. For lengthy conflicts, human rights organizations may use both immediate and more in-depth approaches. Regardless, credibility is key to having an effect. As with all human rights reporting, publications of reports on armed conflict must provide a fair and accurate presentation of the facts and the law.

Human rights organizations adapt their standard way of working to times of armed conflict. They require researchers to have additional skills and develop means to overcome obstacles of access, security, information, and time. They apply IHL as well as human rights law to their findings, and they use a combination of short- and long-term products to support their advocacy goals. These groups regularly share information with the representatives of other types of organizations, including the United Nations, International Committee of the Red Cross, and the media. In doing so, they collaborate to increase scrutiny of IHL violations and to change the behavior that causes avoidable civilian suffering, the ultimate goal of their missions to the field.

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HUMAN RIGHTS IN SITUATIONS OF ARMED CONFLICT Sadiq Syed

(former) Human Rights OfficerUN Office of the High Commissioner for Human Rights

International human rights laws guarantee protection of human rights, including in situations of armed conflict. A number of treaties, declarations and guiding principles have been enunciated and ratified by state parties. Escalations in internal and international armed conflicts around the world pose threats to international peace, security and human rights. With the emergence of the United Nations and its various organs, agencies and departments - besides a number of regional entities - ongoing strenuous efforts promote international peace and respect for human rights. A long list of successes and best practices can be quoted from the recent past that dovetail the initiatives of the international community - including the United Nations and other international, regional and national institutions - in preventing conflicts and restoring peace.

Despite this, there has been a dramatic increase in a wide range of human rights violations around the world, which call for retrospection and concerted action. The Security Council while reacting to the Darfur conflict through its Resolution 1769 observed: “on-going attacks on the civilian population and humanitarian workers and continued and widespread sexual violence”; “need to bring to justice the perpetrators of such crimes”; “condemnation of all violations of human rights and international humanitarian law in Darfur”. It is estimated that at least 30,000 people were killed and 2.7 million others displaced since the Darfur conflict erupted in 2003.

Common Trends of Violations in Situations of Armed Conflict

(i) Abuses by Government forces and allied militia under international humanitarian law. These include failure to discriminate between civilian and military targets, violence towards non-combatants, pillaging and intentional displacement of civilian populations. Violations of international humanitarian law have also been perpetrated by rebel movements.

(ii) Arbitrary arrests and detentions by police, national security and military intelligence, as well as abductions by rebel groups who have de facto administrative control over certain geographical areas and assume responsibility for law and order in those areas.

(iii) Sexual and gender based violence mainly directed towards displaced women who are vulnerable to attacks when traveling outside the camps for their income-generating activities.

(iv) Torture and ill-treatment by government security agencies and rebel groups. (v) Harassment of Internally Displaced Persons (IDPs) by militias, rebel groups and

government forces. (vi) Inability of IDPs and civilians to conduct livelihood activities due to high risk of and

lack of protection.


(vii) Lack of accountability for human rights violations. (viii) Poor administration of justice due to lack of resources and lack of political will. (ix) Unreasonable restrictions on the freedoms of expression, opinion and assembly.

Government security forces allegedly harass, arbitrarily detain and mistreat human rights defenders and community leaders who express opinions perceived as opposition to the government.

Darfur Conflict: A Case Study

Darfur continues to be tense and volatile. Historically, the present conflict was heightened with attacks by rebel groups against the government starting in late February 2003. The primary rebel group was the Sudanese Liberation Army/Movement (SLA/M), which was later joined by the Justice and Equality Movement (JEM). In September 2003, negotiations between the Darfurian rebel groups and the government began, initially mediated by Chad, and later by the African Union (AU) in Abuja. On April 8, 2004, the N’djamena Agreement on Humanitarian Ceasefire on the Conflict in Darfur was signed. The AU deployed troops to Darfur in July 2004 to monitor implementation of the ceasefire agreement. However, parties to the conflict continued to violate principles of international humanitarian law, in particular principles regarding treatment of non-combatants.

In September 2005, there was a split in the SLA into factions commanded by Minni Arko Minawi and Abdel Wahid Nour. On May 5, 2006, the Darfur Peace Agreement (DPA) was signed by the Government of National Unity (GNU) and by Minni Minawi’s faction of the SLA. Later two other factions SLA/Free Will and SLA/Mother Wing also signed the DPA. The other parties to the peace negotiations, Abdul Wahid’s faction of the SLA and JEM, officially rejected the DPA. On June 30, 2006, Darfur rebel leaders from JEM, the Sudan Federal Democratic Alliance and SLA (including Abdul Wahid’s former Deputy Chairman) founded the National Redemption Front (NRF) opposing the DPA. The NRF was the first of many new or reconstituted rebel groups that have been formed since the signing of the DPA. This was followed by another new combined faction named ‘SLA Unity’. In the post-DPA period there has been an increase in violence as different rebel groups compete with each other and the government for territorial control. As of January 2009 it is claimed that there are about 15 rebel groups operating in Darfur.

On July 31, 2007 the Security Council adopted a resolution calling for the deployment of a joint peacekeeping force ‘African Union-United Nations Hybrid Operation in Darfur’ (UNAMID), which incorporated AMIS personnel and the UN Heavy and Light Support Packages to AMIS. UNAMID was intended to consist of up to 19,555 military personnel, including 360 military observers and liaison officers, and an appropriate civilian component including up to 3,772 police personnel and 19 formed police units comprising up to 140 personnel each.


In September 2004, the UN Security Council established an International Commission of Inquiry into reports of human rights violation in Darfur. In January 2005, the International Commission of Inquiry on Darfur recommended the referral of the situation in Darfur to the International Criminal Court (ICC). The commission identified 51 individuals as potential suspects but sealed their names in an envelope. In March 2005, the UNSC adopted resolution 1593 referring the situation in Darfur since July 1, 2002 to the ICC. The first resolution of its kind from the UNSC was adopted by a vote of 11 in favor, none against, and 4 abstentions. In July 2008, the ICC prosecutor sought an arrest warrant against the Sudanese president.

During 2009-10, UNAMID, with the support of the international community, government and rebel factions, held a number of peace negotiation meetings at Doha, Qatar. Though the number of incidents of fighting and displacement has subsided, tensions persist and the renewed fighting in January 2011, according to UNAMID, drove some 43,000 people from their homes. Mr. Ban Ki-moon, UN Secretary-General, called on all sides to respect international humanitarian law and the rights of individuals, warning that the hostilities would directly affect the peace process that was launched in Doha.

Human Rights Monitoring and Reporting in Darfur

The human rights presence in Darfur has been the longest in Sudan as Human Rights Offices (HROs) were deployed soon after the signing of the Joint Communiqué between the UN and the government of Sudan in July 2004. The Human Rights Section is the largest substantive component of UNAMID, with 208 staff. Besides UNAMID, a few other agencies also undertake monitoring on their specific mandates. For example, UNDP rule of law undertakes court monitoring. UNFPA as a lead agency on SGBV coordinates the working groups, receives information and supports capacity building with a focus on State Committees on SGBV. UNAMID police undertake monitoring on specific issues including human rights, SGBV and related matters. The adoption of the Security Council Resolution 1325 on Women, Peace and Security (2000) also contributed towards mainstreaming gender into peace keeping operations, including UNAMID. To achieve the SCR 1325 objectives, the UN launched a plan and advocacy to recruit more female police officers into national police services and into UN police operations around the world, with a goal of reaching 20 percent by 2014.

The UNAMID Human Rights Section focuses on the following:

1) Monitoring and Reporting: The Human Rights Section has a robust mandate and, in accordance with the Joint Communiqué, the SC Resolutions and Status of Forces Agreement (SOFA) the HRO monitors the human rights situation including the post-DPA developments. The human rights weekly and other reports covered the implications of the DPA and the roles being played by both the signatories and non-signatories on the peace process.


2) Administration of Justice: The human rights mandate provides for monitoring and technical support in the area of administration of justice. The human rights teams undertake regular monitoring visits to the courts and also provide technical and other support to the judges, lawyers, prosecutors, police and others through workshops and information sharing sessions.

3) S/GBV: The Human Rights Section is the lead focal point on sexual/gender-based violence (S/GBV) in Darfur in the areas of monitoring and reporting. HRO is also a member of the GBV State Committee and contributes significantly through regular participation in meetings and provision of technical and other support. The HRO also conducts a number of training sessions for a variety of target groups towards ensuring S/GBV prevention and response;

4) Arbitrary Arrests, Detention and Killing of Civilians: Arbitrary arrest, detention and killing of civilians are priority areas for HRO. In this context the HRO undertakes regular monitoring visits to the prison and other detention facilities of the government, signatories and non-signatories. While HRO was given access to state prisons in many areas it continues to face restrictions in gaining unfettered access.

5) Economic, Social and Cultural Rights: Though the human rights section traditionally had covered ESCR earlier, it has been added as one of the focus areas for monitoring and reporting during November 2008. Human Rights staffs were also trained on the subject with the help of Office for the High Commissioner for Human Rights (OHCHR) experts.

5 Capacity Building and Training: With the technical cooperation and support from OHCHR and donors, the HRO undertakes capacity building and training activities, also leading to positive reform and institution developments. These include technical and other support to the UNAMID police in implementation of the project on ‘national police training on human rights, gender and child protection’; workshops on human rights, covering S/GBV and treaty reporting for the legislators at both national and state levels; and training workshops for judges, prosecutors, lawyers, native administrators, community leaders, media persons and youth groups.

Monitoring of human rights requires specific skills and expertise. To equip the HROs, government and civil society with the skills of investigation and monitoring, trainings were organized with the help of international experts. Those joining the mission are attached with the team members long serving on the ground, thereby availing newcomers with the opportunity to gain needed skills and expertise. Basically, an advanced degree in law or political science is desired and the qualification may be relaxed depending on the post and the experience of a candidate.

The instability of the security environment remains a major obstacle to the effective monitoring of human rights in Darfur. The human rights monitors are unable to access much of Darfur by road to conduct routine monitoring and investigation of human rights violations. There is an alarming increase in the carjacking, theft, robbery, and abduction of humanitarian staff by armed elements in Darfur.


Human rights teams have access to some of the detention facilities in Darfur. However, despite assurances made by the government, human rights monitors continue to be denied full and unimpeded access to all those detained in Darfur in relation to the Darfur conflict, including those held in national security and military intelligence facilities.

An improved security situation and cooperation from the government, armed movements and other actors will help significantly in affecting monitoring and improvement of the human rights situation. A number of joint initiatives between the government, movements and civil society have been attempted and advocate for effective human rights promotion and protection. Following the recommendations of the ‘Group of Experts on Darfur (GED)”, the Swiss government funded a project jointly implemented by the government of Sudan and both missions in Sudan, and is aimed at strengthening human rights in Sudan. The AU-UN Mission is also lacking the mandated full strength of military, police and civilian staff to be able to effectively monitor and implement the mandate. Very few parties to the conflict came forward to sign the DPA. A clear political will and commitment from all the parties to the conflict will help improve the peace and human rights situation in Darfur.

There are a number of studies that have been done and guidelines prepared for human rights monitoring and reporting specifically involving vulnerable groups including women and children. These include the following principles:

• Do no harm • Know your subject and assess the risks• Prepare referral information and do not make promises that you cannot fulfill• Adequately select and prepare interpreters and co-workers• Ensure anonymity and confidentiality• Get informed consent• Listen to and respect each victim’s assessment of his/her situation and risks to his/her

safety• Do not traumatize the victims or witnesses• Be prepared for emergency intervention• Put information collected to good use.

Thorough and systematic monitoring of human rights violations enables HROs to better monitor record and analyze human rights developments over a specific period of time. It also allows HROs to track patterns and highlight key trends of human rights violations in the conflict. A number of reports are generated by the Human Rights Section on a regular basis. These include, field mission reports, weekly reports incorporating inputs from all field offices, special reports, periodic reports, thematic reports, and monthly and quarterly reports. These reports serve to channel human rights concerns and recommendations to relevant parts of the mission, the UN system in general, and other policy making forums and donors. The UN human rights monitoring


and reporting systems adapt and work with utmost transparency while maintaining confidentiality standards, where needed, especially in cases of S/GBV.

Thus the principles of neutrality, impartiality and accountability with which the United Nations operates provide an opportunity to monitor, record, and evaluate the implementation and realisation of human rights. The principles also promote and ensure ‘constructive dialogue’ between the parties to the conflict as well as the state party and the international community, with the ultimate objective of promoting ‘global peace’.

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DEFENDING THE DEFENSELESS:HOW TO PROTECT CIVILIANS IN CONTEMPORARY CONFLICTS

Dan Kuwali, PhDAssociate Professor, Centre for Security Studies, Mzuzu University

Carr Center Fellow, 2009-2010

Introduction

In contemporary armed conflicts, villages are the battlefronts and civilians are deliberate targets. These conditions challenge the realization of fundamental protections afforded to civilians in contemporary conflicts. Civilians face growing hostilities from parties to the conflict while also experiencing dire humanitarian need. Actually, it is now more dangerous to be a woman than a soldier in modern conflict as rape is a commonplace weapon of war. For example, in Democratic Republic of the Congo (DRC), the most visible threats to the human rights of civilians are the government soldiers. However, the government is not the only violator of human rights as atrocities also occur in rebel-held areas. One outstanding policy question is how to protect civilians in an ongoing armed conflict? Protection of civilians in armed conflict is not only a concern of host States but also the region and the international community at large. Nevertheless, the absence of a consistent legal framework or useful reporting mechanisms can deter victims from reporting abuses and, therefore, render the norm of protection mere rhetoric.

Humanitarian aid workers and peacekeepers have also been abducted and murdered by unscrupulous belligerents in conflict situations. Humanitarian workers are also faced with legal, operational and policy challenges in their efforts to enhance protection for civilians. The erosion of humanitarian space, the proliferation of actors on the battlefield, including private military corporations, have enhanced the need for a predictable, robust and coherent regime for the protection of civilians in armed conflicts. Parties to an armed conflict have various motivations for committing atrocities against civilians. Therefore, the challenge is to develop a political-normative framework that promotes a culture of prevention and a climate of compliance with human rights and humanitarian law by the parties to the conflict. Therefore, this paper seeks to generate policy options on how to bring the government and non-state armed groups to compliance with human rights and international humanitarian law (IHL) obligations in armed conflicts in order to inform strategic responses to the problems of protection of civilians.

Problems of protection of civilians in armed conflicts

Today, civilians constitute the bulk of casualties in armed conflicts, often deliberately targeted rather than merely caught up in the fighting. Women and children constitute the majority of contemporary armed conflicts and are exposed to high rates of sexual violence. Violence against women, especially sexual violence, is increasingly used as a tactic during armed conflicts. For


example, in the Rwandan genocide in 1994, an estimated 500 000 women and children were raped by marauding militias and soldiers. About 85 per cent of the refugees, asylum-seekers and internally displaced persons (IDPs) who are victims of conflicts are women and children. More than 2 million children worldwide have been killed in situations of armed conflicts, at least 6 million have been permanently disabled or injured and over 14 million children have been displaced within and without their home countries due to armed conflicts. Given their limited mobility and vulnerability, the elderly and people with disabilities are even more exposed to the brutalities of warfare.

Military observers are usually deployed to act as the “eyes and ears of the United Nations” and their patrols are intended for the monitoring and reporting of human rights violations. Whereas the roles of the peacekeepers are deterrence, cease-fire monitoring and peace enforcement, the peacekeepers have been viewed as largely ineffective. Generally, the mandate of the peacekeepers has read as follows: “using all means deemed necessary to protect civilians under imminent threat of physical violence” and improve security and “forcibly implementing” cease-fires”. While peacekeepers have been deployed to protect civilians in armed conflicts, more often than not, peacekeepers, who are supposed to be protecting civilians, often find themselves in untenable situations without proper strategy, training, doctrine or equipment to protect civilians.

On the one hand, the failure of peacekeepers to fulfill their mandate is partly due to the intrinsic inadequacy of the force. On the other hand, part of this peacekeeping failure has to do with a range of other factors, including inadequate training and differences of language and culture between peacekeeping forces and civilians. The failure to protect civilians in armed conflicts under the watch of peacekeepers sends the wrong signal to warring factions as well as the populations they are supposed to protect. This growing trend also raises disturbing questions about mandate and the political will as well as capability and capacity of the military forces in the protection of civilians in armed conflicts. The apparent lack of protection by the peacekeepers of the civilian community has eroded the credibility of the UN mission with some civilians saying the following:

“ Nobody ever gets into the base.” “They don’t protect us. They just sit there and drink tea.” “They passed by one day, they didn’t stop.” “ I formed my own group to protect the people.”

While some missions have explicit ‘civilian protection’ mandates such as MONUC (SEC/RES 1291/1493) and Sierra Leone (SEC/RES 1270), other UN peace operations have implicit goals of protection such as the International Assistance Force (ISAF). Since its first use in 1999 for Sierra Leone, the UN Security Council is increasingly using language that explicitly provides for UN-led operation to protect civilians “under imminent threat of physical violence’. However, civilian protection is listed as one task among many such as demobilization, disarmament and reintegration (DDR). Even with the inclusion of civilian protection language in the mandates, it


is not clear if peacekeepers deployed in these operations view the defense of civilians as a primary mission or task.

Although the UN Security Council is increasingly using language that explicitly provides for UN-led operation to protect civilians “under imminent threat of physical violence,’ it is not clear if peacekeepers deployed in these operations view the defense of civilians as a primary mission or task. Additional factors such as actual capacity, perceived capacity and location determine whether protection of civilians can actually be carried out. Further, the interpretation of phrases such as “protect civilians under imminent threat of physical violence” varies in practice, as does the preparation of peacekeepers, commanders, and the political leadership for such operations.

Towards building a capability to protect

The gaps in peacekeeping forces institutional capacity also present challenges in recruiting and deploying personnel, meeting logistical requirement, managing mission operations, and sustaining forces on the ground. Aside from these, there are difficulties in developing doctrine and matching mandates to mission tasks. Therefore, the challenge is how to move away from fragmented, ad hoc approaches into the direction of a more comprehensive and effective approach to protect civilians from abuse, to mitigate the impact of warfare and to alleviate their suffering. This shows that there is an urgent need for a comprehensive doctrine to guide the protection of civilians in armed conflicts. While there have been efforts to develop doctrines and operational capacities to meet such challenges, the protection of civilians on the ground remains a matter of political will and much more work needs to be done. Additional mechanisms should be explored to enhance the observance of IHL and incorporate a “Code of Conduct” on human rights and IHL into the training of all armed forces involved in the campaign to protect civilians.

The idea is for peacekeepers to have military superiority over opposing forces in an armed conflict because of the presumption of armed opposition and the need to deter opposition. More often than not, the rag-tag perpetrators of mass atrocities are killers but not fighters and usually know nothing about the laws of war. Typical among the perpetrators are children, abducted and forced to commit despicable acts of barbarity. This explains why they find civilians as soft targets. Peacekeepers should have ‘capability to protect’ in order to effectively conduct the campaign to protect civilians. The challenge of protecting civilians from the scourges of war requires considerable military deployment capacity. There is a saying that guns do not kill people, but people kill people. As such, where appropriate and within their mandates peacekeepers should have a credible deterrent capacity. The NATO Response Force (NRF) and the EU Battle groups are good models for the formation of a doctrine for the protection of civilians in conflict zones.

The uncontrolled spread of small arms and light weapons as well as the problem of landmines constitute a threat to peace and security to civilians, women and children. Therefore, to better protect civilians, it will be essential to further address the menace and supply of small arms


which have largely contributed to the commission of violations of human rights and humanitarian law. Therefore, a comprehensive disarmament and enforcement of arms embargo by peacekeepers should be part and parcel of the campaign to protect civilians in armed conflicts.

The way forward

The protection of civilians is a human, political and legal imperative that recognizes the inherent dignity and worth of every human being. The responsibility for ensuring civilian protection should be respected by both state and non-state actors. Implementation of human rights and IHL through permanent, preventive, and corrective scrutiny in the field is more appropriate than a posteriori prosecution of violators. To overcome the problems of protecting civilians in armed conflicts, there is need for a comprehensive doctrine to guide the protection of civilians in armed conflicts coupled with political will to defend the defenseless. There is need for policymakers to take steps towards filling the gaps that exist between reporting situations of the plight of civilians in armed conflicts and the necessary action of bringing appropriate responses. Forward planning is needed for a comprehensive doctrine, rules of engagement, and better training of troops to protect civilians. A timely decision by relevant authorities would enable peacekeepers to protect civilians with an appropriate mandate and adequate resources. The idea is for peacekeepers to be able to deter potential perpetrators of violations of the fundamental rights of civilians. This requires, inter alia, adequate training of peacekeepers, proper equipment, a robust and practical mandate and flexible interpretation of rules of engagement.

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THREE SHORT PROPOSALS TO ENHANCE THE PROTECTION OF CIVILIANS IN ARMED CONFLICT

Paul Bonard(former) Deputy Director for Protection

International Committee of the Red Cross

The purpose of this very short paper is to present suggestions for improving the response to the protection of civilians in situations of armed conflict. In my opinion, the types of violations to which civilians are exposed are generally quite widely known. Therefore, I would like to argue that the real problem of protecting civilians in armed conflicts is not so much a question of monitoring and documentation of the violations, but rather an issue of response to these violations by the international community and the protection players, in particular, the lack or inadequacy of such responses.

When faced with an overall situation of violence linked to an armed conflict (widespread and severe violations against physical and psychological integrities of civilians), how can we improve ways to respond to this situation? How can we limit or put a stop to the violence, prevent its extension and reduce or repair the effects of the violence on the affected populations?

I would like to focus on three proposals hereafter, of a nature to stir-up the debate on this issue.

1. Need to Increase capabilities of peace-keeping or peace-enforcement troops to use force in order to protect civilians

This suggestion has been debated over and over. Yet, our concern relates precisely to the persistent lack of support to it. Why continue debating about protection of civilians when the fundamental pillar of the whole system, protection through the military, is not seriously considered? This is like building a house without foundations.

First, there must be a wider acceptance that peace-keeping and peace-enforcement forces are the major if not the only serious solution for protection of civilians in times of armed conflict. For instance, the reluctance of humanitarian players to call for military interventions to protect civilians, based on the principle of independence of humanitarian action from military action, should be corrected. If the mandate of PK/PE forces is truly neutral and aimed at the protection of civilians, humanitarian players should support it and cooperate with the troops on the ground in order to protect civilians. There must be ways for humanitarian players to offer both support to a PK/PE intervention to protect civilians and to keep a reasonable degree of independence of action in the field through a clear physical distinction of their activities. Humanitarian and human rights players should also stop pretending that they can, through their presence, offer a credible physical protection to the civilian population. Even if their action can benefit the population here and there, it can never replace the presence of a PK/PE force. The major role of


humanitarian players, as protection actors, takes place before and after the armed confrontation, not during.

Secondly, peace-keeping and peace-enforcement troops should be perceived as a credible deterrent force in all cases. To achieve this goal, PK/PE forces should always include battalions with credible equipment and real capabilities to defeat or deter troops that are threatening civilians. Various experiences (DRC Congo, Sierra-Leone) have demonstrated that a single battalion of Special Forces (or commando battalion), included in a peace-keeping force, and provided with the adequate logistics (in particular combat helicopters) could create a credible deterrent force that would discourage attacks on civilians. In other words, a couple of hundreds soldiers that are ready to intervene at very short notice anywhere on a territory, included in a peace-keeping force of 10,000 to 15,000 personnel, can serve as a deterrent for the entire peace-keeping operation. Given the operational flexibility of this solution, concrete protection of civilians might become more often a reality.

Unfortunately, western powers are much too often reluctant to contribute troops to peace-keeping/enforcement (PK/PE) forces deployed in areas deprived of strategic importance according to their national interests. The habit of composing PK/PE forces active in Africa uniquely with troops provided by African countries should be discouraged, at least until African national armed forces reach the level of competence and efficiency of developed countries. The difficulties encountered by PK/PE efforts in Darfur are characteristic of this situation. Is it fair that occidental troops be so keen to intervene after natural disasters and so reluctant to commit troops for more difficult and less popular situations of armed conflict?

The reason for such discrepancies lies in the concept of “zero casualties” which still presides over the peace-keeping military doctrine of many countries. One should remember, for instance, that the United States withdrew from Mogadishu in 1993 after having suffered 18 casualties. Is it really the maximum price that occidental powers are ready to pay to save dozens of thousands of African lives? Shouldn’t we at least admit that real PK/PE operations aimed at protecting civilians cannot be pursued with a guarantee of “zero or close to zero casualties”? How come the number of casualties admissible to “restore democracy in Iraq” has been so much higher? If armed forces can be committed to take more risks to save thousands of civilian lives, especially within the framework of special forces (commandos) described above, we would already be on a much better track for providing genuine protection to civilians.

To be more complete, we have to emphasize that western powers have in fact accepted to commit troops under a different umbrella than the UN (NATO and EUFOR, for example). Such a practice can continue if it is in support of genuine peace operations (Peace-Keeping or protection of civilians), and not only in support of interventions aimed mainly at achieving national interests (Iraq and Afghanistan is considered as such by many).


2. Need to reconcile doctrines and policies of peace-keeping/peace-enforcement with those dealing with protection of civilians, in order to bring more coherence to DPKO mandates

Peace-keeping and peace-enforcement on the one hand and protection of civilians on the other remain very different concepts within the Department of Peace-Keeping Operations of the United Nations (DPKO) and attempts to bring clarity and to reconcile the two notions must therefore remain a priority. In other words, peacekeeping, peace-enforcement and protection of civilians must merge into a coherent and overall common concept of protection of civilians against voluntary violence (physical or psychological).

The fundamentals of DPKO’s mandates are grounded in the “ius ad bellum”. This concept deals with the right or the legitimacy to use force in order to achieve military objectives. Regulations of “ius ad bellum” are notably enshrined in the UN Charter. For DPKO, “ius ad bellum” includes all the activities aimed at preventing armed conflict, establishing a cease-fire, separating belligerents, restoring and keeping peace. Peace and a cessation of armed conflict are the main concerns here.

For some years now, many Peace-keeping missions have also integrated the concept of protection of civilians, apparently without realizing that this notion was linked to “ius in bello”, not “ius ad bellum”. Indeed, protection of civilians is based on “jus in bello”. This set of rules, deriving mainly from the Geneva Conventions and its additional protocols, regulates “how” to wage war, and deals with the allowed or prohibited means and methods to wage war. For DPKO, “ius in bello” calls for ways to prevent parties to an armed conflict from using unnecessary force and inflicting superfluous injury or suffering upon civilians. PK/PE forces should monitor that the use of military force remains focused on military objectives and that indiscriminate or disproportionate casualties among civilian population does not take place.

At present, DPKO forces on the ground generally focus on “ius ad bellum”, but insufficiently on “ius in bello”. They argue that their troops must in priority keep the peace and cannot be involved in stopping on-the-ground violations against civilians, as long as these violations are not severe enough to constitute a real threat against the cease-fire or against peace. That is the reason why most PK/PE mandates refer to action by the peace-keeping force to protect civilians “under imminent threat of physical danger”. According to DPKO’s interpretation, this means that peace-keeping forces have the duty to react only when civilians are being threatened by an imminent, collective and significant threat. In other words, if a substantial group of civilians are about to be attacked imminently by armed forces or an armed group, this amounts at the same time to a threat to peace and security and, as a consequence, allows DPKO to remain in the familiar field of “ius ad bellum”. Indeed, by keeping the peace, e.g. by establishing a buffer to prevent attacks by aggressive military forces, the peace-keeping troops will in the same time protect civilians. In other words, they can kill two birds with one stone.


Let’s now take the example where the PK Forces are confronting a situation where hundreds of civilians are, each on individual cases and in a scattered way (both geographically and in time), threatened in their lives or their physical integrity by armed elements belonging to an armed group, over a specific geographic area. Though these would appear as clear violations to “ius in bello” which prohibits attacks against civilians, DPKO would probably argue that there is no imminent threat to a (collective) group of civilians and an intervention to stop this violence would therefore not fall within the mandate of the force. In other words, it would argue that the force should restrict itself to the control of “ius ad bellum” but cannot extend its control to violations of “ius in bello”. This line of thinking also has an operational rationale. DPKO contingents are likely to point out that they are too thin on the ground to prevent individual violations of human rights, even if these violations are so numerous that they amount to massive and systematic violations.

In sum, I would suggest that DPKO should go beyond this very strict interpretation of their mandate and extend their operations to also include systematic monitoring and response in areas where scattered but numerous violations are taking place, even if they do not constitute an “imminent threat of physical danger” to a specific group of population. In other words, they should control respect of both type of norms, “ius ad bellum” and “ius in bello”.

3. Protection against voluntary acts of violence should constitute a sub-category of protection of prime importance, which should be systematically identified and separated from other aspects of protection, in order to streamline monitoring and advocacy in this particular field.

There is a need to return to the genuine, original and most important meaning of protection, i.e. protection of human beings against voluntary acts of violence. For a series of reasons, human rights and humanitarian players have contributed to increasing confusion on the exact meaning of protection. For some, any action aimed at defending human rights is a protection activity, whatever the content of these rights. For them, defending the right to education or to food amounts to protection. For others, protection refers mainly to assistance of IDPs or refugees in camps, with the aim of defending their rights as displaced or refugee people. The development of the notion of human security, although successfull in some aspects, has also contributed to the blurring of the lines between assistance/relief and protection.

I suspect that this confusion originates partly from opportunistic attitudes in relation to funding. Donors have begun to consistently require the integration of protection objectives in assistance, relief or support programs. Yet, protection against voluntary acts of violence is extremely difficult to achieve, especially against a background of tightening security measures. Such measures limit the access of humanitarian and human rights players to the field as well as their ability to denounce publicly (or even in private) the violations committed. Faced with this difficulty, human rights and humanitarian players have gradually restricted their focus on easier and less risky activities of assistance and relief. Yet they are still willing to comply to the donors conditions and want therefore to be seen as “doing something” on the protection side. The result


is this very blurred notion of protection we are confronted with today, which has progressively moved away from its original and most important meaning, i.e. protection of human beings against acts of voluntary violence (physical but also psychological violence). With the present very broad definition of protection, any humanitarian action can be considered as protection.

Based on the above, I strongly believe that there is a need to separate protection against voluntary violence (physical and psychological) from all the other forms of protection. The necessity of a clear monitoring of events of physical or psychological violence makes it an imperative to address these separately from other aspects of protection. Having a clear, separate and well defined notion of protection against violence – one that is not diluted in a vague and too broad umbrella definition of protection - would also facilitate monitoring, help streamline advocacy efforts and allow for clearer channels of response on the ground to these types of needs.

Let me conclude by a couple of remarks on the concept of “protection against voluntary violence”. Firstly, this notion has a much more defined content and should be preferred to the more general term “physical protection”. Indeed, one can be physically protected against a hurricane as well as against armed forces, whereas the concept of violence specifically refers to a human threat. Secondly, violence can cause severe psychological trauma, which is not included in the term “physical protection”. Thirdly, there would be added clarity if we incorporate into this definition of violence the term ‘voluntary’. Indeed, protection against “voluntary or deliberate” violence requires a whole range of specific strategies, which are not necessary when protection needs are caused by “involuntary” action or omission (e.g. negligence).

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LAW AS A TOOL TO IMPROVE THE PROTECTION OF CIVILIANS IN ARMED CONFLICT

Gloria GaggioliPhD in International Law

Researcher, University of Geneva

Monitoring and investigating is a prerequisite to stop human rights (HR) violations and to prevent new ones. It is a particularly difficult and dangerous task; even more when violations are committed in the middle of protracted armed conflicts (AC). In these situations, HR and International Humanitarian Law (IHL) violations are common and States are not always able and/or willing to put an end to them and to punish their perpetrators. The role of the international community and the civil society is therefore crucial. This discussion paper will touch upon ways, especially legal ones, to improve this fundamental task of monitoring/investigating HR in AC, in general and in particular in Africa.

I. Main HR and IHL violations affecting civilians in AC

Current conflicts tend to demonstrate that civilians are not only incidentally affected, but are often the intended targets of attacks by States and non-state actors. This is especially so in internal conflicts based on ethnicity, a struggle for power and/or resources, like those plaguing Africa. Civilians are the victims of direct or indiscriminate armed attacks, extrajudicial killings and forced displacements. Some categories of civilians – like women, children and members of civil society – are particularly vulnerable. Women and children are the victims of sexual violence. The use of child soldiers is more and more frequent. Political opponents, journalists, HR defenders and so-called terrorists are persecuted.

In addition to these targeted HR/IHL violations, the overall consequences of AC will often affect civilians for a long time. These include conflict-related deaths from hunger or disease, extremely poor standards of living for refugees or international displaced persons and traffic in small arms leading to violence and lack of security.

The following three African conflicts sadly exemplify this listing of HR/IHL violations. The information has been collected from the very useful Rule of Law in Armed Conflicts Project of the Geneva Academy of International Humanitarian Law and Human Rights, which summarizes the factual and legal situation of all countries in the world affected by AC.

In the Democratic Republic of Congo, mortality studies estimate that up to 1,200 people die each day from conflict-related causes, mostly disease and malnutrition, but also ongoing violence. There are over 1 million internally displaced persons in the country’s four eastern regions, including about 800,000 in North Kivu and over 300,000 in South Kivu. In 2007 alone, more than 500,000 persons were reported as having been displaced. In October 2008, thousands


of civilians were forced to flee because of the advance of a non-state armed group led by Laurent Nkunda. The army has been implicated in looting, rapes and killings in and around the capital Goma. In early November 2008, several civilians were killed by the rebel forces of General Nkunda as well as by pro-government militias.

In Sudan, pro-government Arab militias are accused of carrying out a campaign of ethnic cleansing against non-Arab groups since 2003. According to the Report of the High-Level Mission on the situation of HR in Darfur pursuant to HR Council decision S-4/101, dated 9 March 2007, many humanitarian actors have been targeted. Killing of civilians was widespread, including in large-scale attacks. Torture, rape and sexual violence were common and systematic. Arbitrary arrest and detention were frequent, as was repression of political dissent, and arbitrary restrictions on political freedoms. In April 2008, the UN Under-Secretary-General for Humanitarian Affairs said that approximately 300,000 people had died since 2003. The causes included deaths from disease and malnutrition as well as direct combat. More than 2.7 million people have been displaced by the fighting. Around 260,000 refugees have fled to neighboring Chad.

In Sierra Leone, the internal conflict that lasted for over a decade, and ended in 2002, claimed over 50,000 lives, and caused the displacement of around one-third of the country’s population. The conflict is unfortunately known for the extent of rape and mutilation of those who refused to join rebel forces and commit atrocities. Child combatants have been widely used to commit atrocities.

II. The need for expertise in both HR and IHL and for information-sharing

A team engaged in monitoring abuses in AC should be constituted by personnel coming from different backgrounds. Lawyers, doctors, historians, ballistic experts and others may be needed. Lawyers need to be experts in both HR and IHL. Indeed, in AC, IHL may constitute the lex specialis and it is importantly complemented by HRL.

Too often, lawyers are specialized only in HRL or IHL. It is true that massive atrocities very often constitute both a violation of IHL and HRL. However, some violations may resort to only one of these bodies of law. For instance, the fact of using an ambulance marked with a red cross to carry weapons and active combatants is an IHL violation, even if it is not as such a HR violation. On the other hand, the fact that a government does not carry out an investigation each time civilians have been killed constitutes a HR violation even if this obligation is not so far-reaching in IHL.

It is also important to recall that monitoring/investigating in AC will not be convincing if some important information is missing. It is often reported that HR/IHL violations have been committed because, for example, of the bombing of a civilian establishment (church, school, hospital, radio, etc.). This information only is not sufficient. To be convincing, the reporters


should investigate whether these civilian establishments were used to make an effective contribution to military action or not. In the same vein, a bombing provoking many casualties among civilians may not as such constitute an IHL violation if the principles of proportionality and precaution were respected.

UN supervisory bodies are trying more and more to include IHL experts. The ICRC is also taking HRL increasingly into account. These positive evolutions should be intensified and better institutionalized. The civil society (media, local NGOs) should receive training in both HRL and IHL as they play a vital role in the collection of information necessary for monitoring/investigating IHL/HR violations.

Finally, it is important to create a network among the HR and humanitarian actors. Competition among them is not always positive. They should collaborate and share information as much as possible. Of course the mandate of each actor should be respected. It is also essential to create and keep contacts with the armed forces of the States and non-governmental militias. Very often, they will be the only one retaining the researched information.

III. The lack of political will as the main issue and the corresponding need to bring into play binding mechanisms to monitor and investigate HR/IHL violations in AC

Effectively monitoring and investigating HR/IHL violations is almost impossible without the collaboration of warring parties. In our view, the main issue is that, in addition to not always fulfilling their obligation to prevent and punish HR/IHL violations, States at war are also reluctant to collaborate constructively with HR institutions or civil society.

This reluctance, or even unwillingness, of States to have external actors monitoring/investigating HR/IHL violations is also evidenced in international treaties. One of the main drawbacks of IHL is precisely the lack of implementation bodies. The ICRC is almost the only international body monitoring IHL (the international criminal courts and tribunals acting only ex post facto to punish international criminals). Of course, other implementation mechanisms have been created by the Geneva Conventions and Additional Protocol I, but only for international AC. Moreover, they have practically never been used. Protecting Powers have not been appointed by belligerents since 1945. The “enquiry procedure” remained dead letter. The same is true for the International Humanitarian Fact-Finding Commission (IHFFC). This body, consisting of fifteen highly experienced experts, is competent to enquire into any facts alleged to be a grave breach or any other serious violation of humanitarian treaties. It has been set up but never used, despite the fact that it has only the power to make recommendations and no right to report its findings publicly without the consent of the parties in the conflict.

This IHFFC could be one very efficient solution to improve monitoring/investigating IHL (and why not also HR) violations during AC. The international community should insist in order to


convince States to accept, already in peacetime, the ipso facto competence of this body. Warring parties should also be encouraged to call into play this body and collaborate with it.

In HR treaties, the situation is different. They do create many implementation bodies with the mandate to promote and protect HR. They are not “investigating bodies” as such but some of them can carry out investigations. The African Commission on Human and People’s Rights, for example, can resort to any appropriate method of investigation. However, apart from judicial bodies – like the European, American and African Courts – these bodies have no binding competence. In any case, even if these HR courts and commissions do have a very important role in protecting HR, they cannot replace bodies working permanently in the field with the mandate to monitor and investigate HR violations. The United Nations (UN) has partly filled this gap with the Charter-based bodies (HR Council and formerly the UN HR Commission and Sub-Commission), which have set up special procedures allowing Working Groups and Special Rapporteurs to monitor and investigate HR violations. However, their ability to do on-site investigation depends on the acceptance of States. One solution could be to convince States to accept in advance the establishment of binding HR monitoring/investigating bodies.

The UN Security Council (SC) can also send monitoring/investigating bodies on the ground. Here also, this will depend on the acceptance by the State; unless the SC decides to act under Chapter VII. However, imposition is not an ideal solution regarding monitoring/investigating because the warring parties retain crucial information. The threat of imposition can nevertheless be used to convince States to collaborate spontaneously with HR/IHL monitoring bodies.

Last but not least, the civil society made of international and local NGOs plays an extremely important role in monitoring/investigating IHL and HR violations. They often know better the situation on the ground as well as the local actors. Despite the fact that many African countries have moved towards democratization, many others still do not have an active civil society, independent media and national HR institutions. This is especially so for countries torn by AC. It is therefore imperative to keep on helping African countries to build a solid civil society.

IV. The need to use different strategies to collect and report information and to persuade policymakers to respond to such violations

Ideally, information should be collected with the collaboration of governments and non-state actors involved in the conflict. It should be reported in priority to the authorities of the parties to the conflict, which are responsible for stopping the violations. It may not be necessary to report the information publicly; unless the belligerents fail or refuse to respond to such violations.

When collaboration with belligerents is impossible or insufficient, publicity seems to be the only solution. Regional organizations, like the African Union, should be informed so that they can convince – by peaceful means – the warring parties to stop exactions.


UN organs, like the HR Council, must be informed. The international community can and should exert a considerable pressure on belligerents as it has the duty to “ensure respect” for IHL and HR. The SC considers that serious HR/IHL violations can be a threat to the peace - allowing it to take binding decisions including the use of force under Chapter VII of the UN Charter. States and the SC have recognized that they have a “responsibility to protect” populations from genocide, ethnic cleansing, war crimes and crimes against humanity.

Concluding proposals

1) Train actors involved in monitoring/investigating violations in AC in both HR and IHL.2) Create a network and spirit of collaboration among actors involved in monitoring/

investigating violations.3) Find a way to “resuscitate” the IHFFC and/or create a HR monitoring/investigating body

with binding powers.4) Better involve organizations and the UN, especially the HR Council and the SC.

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BIOGRAPHY OF AUTHORS

Paul Bonard is the founder and Executive Director of TRANSPLAN, an organization specialized in support to strategic planning and coordination. With a PhD and a background in criminal and international law, he held senior positions for more than 20 years in Africa, Asia, the Middle East and Europe with ICRC, OCHA, DPKO and UNDP. As Deputy Head of the ICRC Protection Division worldwide, Bonard developed a groundbreaking theory in protection, known as “the modes of action”, which became a fundamental pillar for the issues pertaining to the protection of civilians as well as relations between humanitarian, human rights and military players.

Bonnie Docherty is a lecturer and senior clinical instructor at Harvard Law School’s International Human Rights Clinic and a senior researcher for Human Rights Watch. She has done field missions researching the effects of war on civilians in many places, including Afghanistan, Iraq, Ethiopia, Darfur, Gaza, Lebanon, Israel, and Georgia. Docherty also participated in the negotiations for the Convention on Cluster Munitions, which was signed in December 2008 and entered into force in August 2010. Docherty is a former National Security & Human Rights Fellow at the Harvard Kennedy School of Government’s Carr Center for Human Rights Policy.

Gloria Gaggioli is a researcher at the Law Faculty of the University of Geneva and worked as a teaching and research assistant at the Geneva Academy of International Humanitarian Law and Human Rights (2005-2010). She was an external lecturer in humanitarian law at the Law Faculty of Copenhagen University (2006-8) and was a PhD visiting researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (2007-8). Gaggioli has written articles on the right to life; on the mutual influence of human rights and humanitarian law; and on the role of human rights and humanitarian law on the work of the Security Council.

Dan Kuwali is a former Carr Center Fellow at the Harvard Kennedy School of Government. He is the Deputy Director of Legal Services with the Malawi Defence Force with the rank of Lt Col. He worked as a Legal Advisor with the UN Mission in DRC (MONUC). He has been a Research Fellow at the Danish Institute of Human Rights, the Grotius Centre and the Nordic African Institute; and served as correspondent with the Yearbook of International Humanitarian Law. Kuwali is a Managing Consultant with KD Freeman & Associates (Jurisconsults).

Sadiq Syed is a human rights and gender professional currently serving as a Deputy Country Director with UN Women-United Nations Entity for Gender Equality and Empowerment of Women in Afghanistan. He has served as a human rights officer in the conflict and post-conflict countries of Ethiopia, Eritrea, East Timor, Sudan, Liberia and Afghanistan. Syed has authored books and articles on women’s rights; contributed to the formulation of draft bills and ordinances


on domestic violence, child rape and registration of marriages; and led an independent Enquiry Committee on the sale of girls for India’s National Commission on Women.

Felisa Tibbitts is a former Carr Center Fellow at the Harvard Kennedy School of Government and co-director of Human Rights Education Associates. She trains on topics such as monitoring of children’s rights and has carried out numerous evaluations of human rights education and training programs, including the One UN training of African Union peacekeepers in Darfur (2007). Tibbitts is co-instructor of the Kennedy School of Government course “Tools for Human Rights Practitioners.”


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Mission Statement

The mission of the Carr Center, like the Kennedy School, is to train future leaders for careers in public service and to apply first-class research to the solution of public policy problems. Our research, teaching and writing are guided by a commitment to make human rights principles central to the formulation of good public policy in United States and throughout the world.

Since its founding in 1999 through a gift from Kennedy School alumnus Greg Carr, the Center has developed a unique focus of expertise on the most dangerous and intractable human rights challenges of the new century, including genocide, mass atrocity, state failure and the ethics and politics of military intervention.

In approaching such challenges, we seek to lead public policy debate, to train human rights leaders and to partner with human rights organizations to help them respond to current and future challenges. We also recognize that the solutions to such problems must involve not only human rights actors, but governments, corporations, the military and others not traditionally perceived as being "human rights" efforts. Thus, we seek to expand the reach and relevance of human rights considerations to all who influence their outcomes.

The Center uses its convening power to create a safe space for human rights organizations and other policy actors to engage in constructive self-criticism and to forge new partnerships.

The Center uses its research capacity to evaluate the human rights policies of the United States and other governments and to analyze the dilemmas that need to be resolved when human rights principles are brought to bear on major public policy choices.

The Center uses its teaching capacity to inspire future leaders to make respect for human rights principles a central commitment of democratic leadership.

The Carr Center for Human Rights Policy

Carr Center Fellows Working Papers Collection No part of this manuscript may be used without the express permission of the author.

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RESPONSIBILITYTO PROTECT

Improving Protection of Civilians in Armed Conflict

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Transcript of Improving Protection of Civilians in Armed Conflict