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INTERNATIONAL

AND

HUMANITARIAN

PROTECTION

OF

LAW

CIVILAINS-

CONTEMPORARY ISSUES

NAME: VAIBHAV YADAV

ROLL NO: 11LLB064

ABSTRACT
The international Humanitarian Law guarantees protection of human rights from the effects
of armed conflicts and other violent situations and hence, the protection of civilians has
been its main concern for the past six decades. The paper in order to study the need for
protection of civilians and related issues also identifies the beneficiaries of such protection
extending to those trying to help the victims in particular medical units and humanitarian
assistance, providing them with essentials such as food, clothes, and shelter. Article 50 of the
Additional Protocol I to the Geneva Conventions, 1977 defines a civilian as any person
who does not belong to one of the categories of persons involved in an armed conflict of
either national or international nature respectively and Article 51 further protects civilians
against dangers arising from such military operations. Even though several protective
measures are taken to protect civilians, they still account for a high proportion or the
victims in most contemporary armed conflicts either because of the unintended result of
the fighting or because they were deliberately targeted by the combatants and therefore, the
need for the research.
The paper will examine how the International humanitarian Law sets up an extensive
effort to protect civilians who are victims in an armed conflict along with the variety of
threats to their persons and property which are direct violations of human rights. It will
bring to light the challenges faced in ensuring the necessary protection to civilians during
armed conflicts and other violent situations that run in harmony with the IHL. It will focus
on how parties to an armed conflict implement their obligations under the IHL and on the
basis of experiences gathered from recent conflicts, the role of peacekeeping forces,
international military and humanitarian actors so as to reduce increasing civilian
participation and restoration of their rights to free and fair trial. Along with highlighting the
issues pertaining to the protection of civilians that rise in an armed conflict or any
asymmetrical warfare situation, the paper will also be an attempt to point out suggestive
measures to deal with them.

INTRODUCTION

International Humanitarian Law (IHL) is a set of rules formulated for the purpose of limiting
the effects of armed conflicts and various other violent situations on persons who are not a part
of it and yet form the worst affected of the lot. The foregoing has been the objective of the law
since decades but in light of events taking place recently, the protection of civilians has become
the utmost area of concern and a shared objective between the international humanitarian
community and the international military along with peacekeeping actors. The beneficiaries
of the law include persons who arc not or are no longer participating in the hostilities
including peacekeepers and military personnel caught up in the process where the protection of
the civilians is the primary concern.
Civilians as defined under International Committee or the Red Cross (ICRC) are, "For the
purposes of the principle of distinction in international armed conflict, all persons who are neither
members of the armed farces of a party to the conflict nor participants in a leve en masse are civilians and
therefore, entitled to protection against direct attack unless and for such time as they take a direct pan in
hostilities." Moreover, attack on a civilian population is a requisite to constitute the crime of
Crime against Humanity under Article 7 of the International Criminal Court Statute. In the
case of Fofana and Kandewa, the accused were charged with two counts of crime against
humanity, that is, murder and inhumane acts against civilians. The Trial Chamber had perceived
the meaning of attacks 'directed against' a civilian population making the civilian population as
requiring that the civilian population must be seen as the primary target of the attacks. 1
International Humanitarian Law prohibits indiscriminate attacks that do not or cannot
distinguish between civilian and military object. It guarantees protection of human rights in
situations of armed conflict. The definition covers two traditional branches of International
Humanitarian law, that is, the Law of Hague and the Law of Geneva. 2
As per Article 51 of Additional Protocol 1, the civilian population and individual civilians
shall enjoy general protection against dangers arising from military operations.
As per Article 8 of the International Criminal Court Statute that defines War crimes as serious
breaches of international humanitarian law that are perpetrated in the context of either an
1 Fofana and Kandewa SCSI-04-14-T
2 Hans-Peter Garner, International Humanitarian Law-, Hans Haug, 504
3

international or an internal armed conflict. It can be conducted only during in light of a war. This
article is divided into four parts that states that a War Crimes occurs when:

Grave Breaches of the four Geneva Conventions take place. These are linked with the
provisions of the four Geneva Conventions in an international armed conflict where a perpetrator
willfully kills, tortures or causes bodily injury to a person.3

Serious violations of the law of war in an international armed conflict where the
perpetrator uses prohibited means and methods of warfare that includes intentionally directing
attacks against the civilian population or civilian objects.

Serious violations of article 3 common to the four Geneva Conventions in armed conflicts not
of an international character includes violence to life and person, in particular murder of all
kinds, cruel treatment, etc.4 It provides judicial protection if these acts am committed against
persons taking no active part in hostilities, including members of armed forces who have laid down
dick arms.5

Serious violations of international humanitarian law in armed conflicts not of an


international character in the territory of a State when there is protracted armed conflict between
governmental authorities and organized armed groups or between such groups.
Therefore, whenever a crime is committed it leads to the violation of certain human rights.
Nonetheless, the courts try establishing that the attack was directed towards a civilian population
and that they were the primary object of the attack. The challenges relating to the redressal of such
violations as figured out from previous field experiences and further suggestive measures for
improvement of such schemes are thus, matters to be taken into consideration.

3 Art. 49 and 50, Geneva Convention I


4 Common Article 3
5 Article 8(2)(c)(1)-(4)
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FIELD EXPERIENCES THROUGH THE YEARS


As early as in 1991, crises relating to such humanitarian issues were considered in the United
Nations Security Council Resolutions explicitly by employing military action and the maintenance
of international peace and security stressed upon. In the atrocious war of Bosnia and Herzegovina
(1992-1995), crimes like that of genocide forced action from the UN Protection Force and
realisation by the Security Council of its duty to prevent such crimes which lead to the
establishment of resolution enforcing North Atlantic Treaty Organization (NATO). The USled invasion in Somalia (1992/1993) on the call for humanitarian assistance expanded operation
of the UN Peacekeeping forces and brought to light the dire need for observance of humanitarian
norms. Rwanda (1994) suffered due to the inefficiency of the peacekeeping forces in their
response to genocide after which the Council resolved to take to all necessary means to
achieve the humanitarian objectives 6 . Sierra Leone (1999/2000) faced the task of
ensuring effective implementation of the Lome Peace Agreement of 7 July 1999 that was to
end the long civil war and which ultimately led to the resolution of February 2000 that gave
authority to the UN Mission to take the necessary action regarding an enlarged range of tasks
that included a provision "to facilitate the free flow of people, goods and humanitarian
assistance along specified thoroughfares".7
Thus, as a lesson from the lint of events, measures to ensure implementation have been
carved out time to time that seek to ensure to the victims protection of humanitarian
norms for the protection of rights.

MEASURES FOR IMPLEMENTATION

6 United Nations Swain,. Council: Resolution 1296 (On The Protection Of Civilians in Armed Conflict)
7 SC Res. 1289 adopted under Chapter VII
5

The IHL makes a purposeful deliberation with regard to preventive measures that should be taken
to win compliance to the law which include: 8
1. Spreading awareness regarding the rights of people and remedies available to them by
interpreting to them relevant texts
2. Setting up training camps for preparing personnel to efficiently deal with violent situations
3. Adoption of legislative and statutory provisions that address the issue.

4. Other measures laid down for implementation that cover prevention, control and
repression that impose duty upon states to ensure protection of humanitarian law as
given by the International Combine of the Red Cross include:

Procedures for enquiry

Constitution of International Fact-Finding Commission

Interpretation of legal provisions and application of procedures accordingly

Cooperation with the United Nations

Employment of diplomatic efforts and media to help implementation

All these and the legal provisions in the four conventions especially the Geneva
Convention and the Protocols provide for enough framework for dealing with the crises and
issues along with the ICRC as the guardian and promoter of the International Humanitarian
Law that monitors and evaluates the progress and implementation. But in the recent times,
due to technological and other advancements and violations, the risks and challenges
relating to ensuring protection of humanitarian norms have become more acute and press
upon the need for their identification and action in this context.
CHALLENGES AND RELATED RISKS

8 International Humanitarian Law, International Committee of the Red Cross


6

The purpose of the international humanitarian law, being to protect thee innocent yet
affected victims of various violent situations, is in itself a Herculean task, to deal with
which has been the cause heavily in force since the last decade due to increasing instances of
such conflicts and thereby rolling numbers of victims as well.
The victims in an armed conflict are faced with a variety of threats to their persons and
property, which are of such grave magnitude owing to the cadre of crimes involved including
genocide, attacks on humanitarian personnel and targeting of civilians which are instances of
direct repudiation of principles of humanity. Not only these, problems with the peacekeepers
themselves like politicization and inefficient implementation of their restoration plans to
pursue humanitarian action add to the prevalent difficulties of the process. The key problems
in the area which need to be addressed are as follows:
1. The mandates formed by the Security Council for peacekeepers are not well planned
enough to consider the nature of threats to civilians which implies the need for better
structures for working on the findings to provide substantial basis for designing of
mandates and resolutions.
2. The Secretariat and the peacekeeping forces arc not clear with the Councils idea of the
protection of civilians and hence arise the problems in the interpretation and following up of
the mandates by identifying specific tasks to be performed, thus rendering them ineffective.
3. There is prevailing confusion with respect to the intent of the Council itself due to
loopholes in policy making, guides for effecting them and reference to the capabilities of
the peacekeepers and available resources in carrying out the operations..
4. Lacunas in policy making and further planning directly affects the role of the peacekeeping
missions and their effectiveness in the task of protecting civilians through their day-to-day
operations. Policies wore found to be lacking due to:

Lack of realistic and wide Strategies

Incompetent leadership skills

Insufficient resources and structural requirements

Absence of efficient information providers and analysts

These problems pose as challenges in the process of restoration of human rights of the victims, a
better understanding of which provides a clearer idea of the requisite changes and additional efforts
that arc needed to address the issues at hand.

CHALLENGES IN CASE OF CONTEMPORARY ARMED CONFLICTS


Not only these but increasing complexities in the conflicts posts one of the biggest challenges for
the 111L since this has a bearing on the conduct of the military forces and the use of force by
authorities to curb conflicts_ The scope of protection of the MI. is a matter of concern here because
of the primary affected parties being the civilians. Such other challenges relating to contemporary
armed conflicts as identified by the ICRC include:
1. The new range of technology that provide potential weapons for mass destruction that
have found stage in wars such as drones that arc being used frequently in armed
conflicts these days, the impacts on the introduction of which are unforeseeable.
2. The presence of hostilities and non-state armed groups which operate specifically in
populated areas against the forces of the governments thus, exposing civilians to
utmost threats.
3. The misuse of available conventional weapons by the deviants which is also a
result of lax regulations with regard to arms and ammunitions in the affected states and
their possession with persons that violate IHL.
4. Newer challenges in terms of non-international armed conflicts especially include the
decision of terming such rebels as 'terrorism', considering that they cause continued
conflation in public domain, as they have no incentive to comply with the customs
of war.
Thus, in contemporary armed conflicts, the aim of providing the protection of WI- is
hindered by many obstacles and humanitarian access to the civilians is the need.

RISKS AS A RESULT OF SUCH VIOLENT SITUATIONS

It cannot be denied that armed conflicts and other violent situations have long lasting
repercussions and leave their mark as permanent blemishes and symbols of crooked
approaches of people for they result in large scale destruction not only to persons, properties
and nations as a whole but the magnitude of some of them like those of nuclear attacks
permanently impair generations to come.
The related risks with respect to dealing with the effects of such situations include
participation of civilians in armed groups and support to hostilities due to losses suffered by
them and their suppression to the governments dealing with rebel groups. the foreseeable
and substantive risks include:
1. Abuses by the government forces and other allied military forces due to failure to
discriminate between civilians and targets leading to unintended violation of
humanitarian law.
2. Harassment of Internally displaced groups of people by the government forces due to difficulty
in identification and further torture and ill treatment as a result acting as a driver for
civilians to join the rebels.
3.Unreasonable restrictions on freedoms of speech and expression and peaceful assembly
imposed by the governments on the civilians that are generally construed as oppression by
them, thus building opposition to the governments by right defenders and community
leaders.
4.Threats to national integrity due to large-scale chaos and inability to conduct livelihood
activities by the civilians that may result in failure if governments further worsening the
situations.

Not only these, but numerous other risks arise daily as a result of these armed conflicts with
developments in destructive capacities of weapons and building rage among the rebels due to
unfulfilled demands that they bear due to which the civilians suffer unprecedented. Such
risks spell true daily in crane or the other parts or the world and which urges the need
for appreciating and defining proper roles of peace keeping missions and other institutions
and organizations working with the same motive which is discussed further.

ROLE OF PEACEKEEPING FORCES


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As mentioned earlier, the challenges met and the posed risks can be remedied by clearly
defining and enhancing the role of peace keeping forces in order to effectively fight the
effects of such violent situations and ensure a better tomorrow for the affected persons.
The importance of these is fluffier elaborated.

The Security Council's role is to maintain international security including protection of


civilians in an armed conflict It was made explicit by the United Nation Security
Council that peacekeeping is a temporary solution, but it can help to make a State take on
its responsibility protect civilians be legislating law and reforming security sector. 9 The
council clearly stated that though States bear the primary responsibility for the protection
of their civilians, the UNSC would be just acting as a benefactor and providing them with
sufficient aid. The role of peacekeeping units has changed with time and need. Earlier, its
primary function was to provide traditional peacekeeping, that is, to monitor an agreement
between two parties towards a 'multi-dimensional' mission whose tasks includes anything
from supporting elections to protecting civilians. Since the past few years, international
organizations have added peacekeeping missions as an important mandate. The first mission
provided with this explicit mandate language, the UN peacekeeping operations in Sierra Leone
was authorized to afford protection to civilians under imminent threat of physical violence.
Article-8 of the International Criminal Court Statute also includes peacekeeping forces under the
ambit of protected persons. In the case of Prosecutor v. Karadzic and Mladic, the ICTY Tribunal
charged the accused for taking civilians as hostages that also included UN peacekeeper.
International organizations only aim to encourage the participants in armed conflicts to respect
human rights and humanitarian law. In dealing with human rights violations, these
international Organizations rely principally upon the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights. There are five reasons
why International Organizations have found norms of humanitarian law to provide a useful
additional legal foundation for their concerns. Firstly, 165 countries have ratified Geneva
Conventions while the ICCPR has been ratified by 85-nations.

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Secondly, some principles of

international humanitarian law are specific provisions; thirdly, humanitarian law applies
9 UNSC Roolution 1894, Para 3
10 International Committee of the Rod Cross (1986), as updated to 31 December 1986 by the International Committee of the
Red Cross

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specifically to situations of armed conflicts which violate the customary international law,
fourthly, most of the times military and law enforcement officials often do not take
international human rights law seriously but they do consider it to be worthy of respect
and lastly, Humanitarian law covers violations in both governments and armed opposition
groups, whereas, international human rights law deals principally with the responsibilities of
governments.
The role of many international organizations varies from situation to situation. There
primarily focus is upon human rights violations and seek to persuade governments to fulfill
their human rights or humanitarian law obligation. The organizations involved in
peacekeeping missions have the authority to deploy missions capable of implementing
protection of civilians' mandate by providing adequate military, police and civilian staff
The Security Council requests all peacekeeping missions to systematically collect,
aggregate and analyze data on protection issues that included all grave, inhumane acts to which
the civilians were subjected to.
The biggest challenge faced by the peacekeeping units is that all missions rely upon
the cooperation with the host government. 11 These units that are also known as the 'world
police' and that strive to spread peace and harmony, can only function and help the afflicted
victims of a State if they get consent of the host government. If the host country's
consent is given under international pressure, such as in Darfur or Sudan, the mission
faces significant challenges in implementing their mandate.12
Hence, the protection of civilians has been a matter of concern for all International
organizations and this concern enhanced when the peacekeeping units failed to prevent the
mass killings in Rwanda and Srebrenica. Eventually, the key position of human
security as an aspect of international peace and security was recognized. The Secretary
General of the United Nations righteously argued that the real or the actual success of a peace
support operation is related to the human security of the local populace and in achieving a
situation in which violence is reduced to levels that are acceptable to the local population.
Thus, steps must be taken to explore newer avenues to fight for the cause of civilian
protection some suggestions for which arc discussed below.
11 U.N. Department of Peacekeeping Operations and Department of Field Support. UN Peacekeeping Operations:
Principles and Guidelines (2008)
12 Colum Lynch. Special Report into the Darfur Genocide, Part 1: They Jun Stood
Watching. Foreign Policy

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ENHANCING PROTECTION OF CIVILIAN POPULATION: SUGGESTIONS


As it already mentioned in the paper that during a contemporary armed conflict the civilians
are deliberate targets of belligerents, these conditions challenge the realization of the
necessary protection of civilians in an armed conflict. Not only the civilians, who are
stuck in the crossfire between two parties in a conflict, are affected but also the
humanitarian aid workers and peacekeepers arc abducted and murdered by belligerents in
conflict situations. In present scenario, women and children constitute the majority of
casualties who are exploited in an armed conflict. In 1994, the Rwandan genocide
witnessed mays rape and murders of women and children. Many a times, peacekeepers that
have been deployed to protect civilians in armed conflicts often find themselves in
untenable situations without proper strategy training, doctrine or equipment to protect
civilians. This usually occurs due to the intrinsic inadequacy of the force and hence, the
response to the protection of civilians in situations of armed conflict needs amendment.
The first proposal laid down by many humanitarians was that there needs to be an
increase in capabilities of peacekeeping forces to use force in order to protect civilians.
The State in conflict, firstly, needs to be less reluctant in calling for humanitarian assistance when
in need. They need to cooperate with the mandate of the peacekeeping troupes and assist them in
reducing the chaos occurring in the State. Secondly, the peacekeeping units should be
perceived as a credible deterrent force in every case. Hence, a peacekeeping unit should always
include battalions with credible equipment and real capabilities to defeat troops that are
threatening civilians.
The Second proposal stated that there needs to be reconciliation in doctrines and policies of peacekeeping while dealing with protection of civilians. The protection of civilians and peacekeeping
are two different concepts within the Department of Peace-Keeping Operations of the United
Nations (DPKO). Hence, both the concepts should merge into a coherent concept of protection of
civilians against voluntary violence. DPKO follows the ius ad bellum concept that deals with the
right to use force in order to achieve military objectives. Since the past few decades, many
peacekeeping missions have also integrated the concept of protection of civilians without realizing
the accuracy of the steps taken by them. According to DPKO's interpretation, peace keeping
forces have the duty to react only when civilians are being threatened by an imminent threat.

12

Hence, two different sets of fundamentals make it chaotic for the peacekeeping forces to perform
their duties in protecting the civilians.
The Third proposal states that there should be protection against voluntary acts of violence and
that should constitute a sub-category of protection prime importance that should be systematically
identified and separated from other aspects of protection. Humanitarians argue that the
peacekeeping units should follow the basic rule of protection that in saving human beings against
voluntary acts of violence. With time, it was noticed that humanitarian actors have contributed to
increasing confusion on the exact meaning of protection. Hence, this makes the peacekeeping
units digress from their mandates. Nonetheless, protection against voluntary acts of violence is
extremely difficult to achieve, hence, leaving the humanitarian actors to shift their focus on easier
and less risky activities of assistance and relief. Therefore, there is a need to separate protection
against voluntary violence from all the other forms of protection. This clarity is a necessity
because it will help streamlining efforts and allow for clearer channel of response on the ground to
these types of needs.
Protection of civilians can only become more professional if there is clarity amongst the
peacekeeping units. These units need to he subject to the same rigours of programme planning
as it is expected on the field. The objectives given to them need to be clear, whether they are to
reduce the level of the threats faced by civilians or whether they are required to reduce their
exposure to it In summary, the objects and goals sot for the protection of civilians in an
armed conflict needs to have a well-structured guideline.

Conclusion

On 12 August 1999, many distinguished personalities including Kofi Annan. Prince


Masan of Jordan, and Sadruddin Aga Khan met in Geneva and together they signed a
Solemn Appeal. The most significant part of which is as follow:

13

We have come together in Geneva to make a solemn appeal to all peoples, nations
and governments. We call on the world: to reject the idea that war is inevitable and to work
tirelessly to eradicate its underlying causes; to foster relations between individuals, peoples
and nations on the basis of the principles that inspired the Geneva Conventions, namely
respect for human dignity in all circumstances, compassion for those who suffer,
solidarity.
This appeal clearly points out the cry of the nations to light out the effects of wars that befall
and paralyse the affected for no less than forever and therefore the urgent need to treat it with
the best of our efforts especially to protect the worst affected and vulnerable civilians
including women and children along with diminishing further prospects of war.

It cannot be denied that every state is obliged to work for the welfare and in the best interest of
its subjects and therefore, it is incumbent upon it to ensure safe and protected environments to
its civilians. Where in this attempt of the governments, external or internal disturbances in
the forms of various conflicts and violent situations offer great challenges in the face of
the states competence and further pose a question on the availability of rights and protections
that must be a promise of all governments. The International Humanitarian Law seeks to
work towards the restoration of such rights and provides for reliefs against these violations.
Thus, in order to ensure such relief a proper framework of implementation, monitoring and
evaluation of the rules and policies and various operations is a necessity to achieve
favorable results. For this, it needs to adapt to changing times and adopt a progressive
approach to keep its promise of a war free and protected world in times to come.

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