Humanitarian protection in war: the official story
The established humanitarian protection philosophy is based on international law and the state system. International humanitarian law (IHL), international refugee law (IRL) and international human rights law (IHRL) form the central pillars of the array of legal frameworks that guide the behaviour of actors during times of war to protect the lives of non-combatants. In simple terms, these laws limit the behaviour of armed actors towards civilians and promote access for neutral and impartial humanitarian relief. At the local level, humanitarians fill a central role, disseminating these laws to ensure they are widely understood, conducting humanitarian advocacy to bring actors into line with these laws and providing neutral, impartial relief to affected communities in line with the provisions of the law. These laws are seen as universal, with the Geneva Conventions commonly cited as being ratified by 196 countries and being applicable to all actors, all the time. Similarly, a gi owing array of human rights instruments relevant to protection in armed conflict are promoted as universal.
IHL is the most significant body of law relating to civilian protection in war. The four Geneva Conventions of 1949 form the central foundation of these laws, protecting wounded soldiers, the shipwrecked, prisoners of war and civilians, respectively.1 These four Conventions are supplemented by the two Additional Protocols of 1977 which incorporate non-international armed conflicts and nonstate armed actors into the frameworks.2 They have been gradually complemented by an array of other IHL treaties banning particular weapons and methods of war.3 These laws are rooted in the universal legal norms of restraint, restricting the means and methods of war by clarifying standards of appropriate conduct. A set of legal principles underpin these efforts, notably distinction, proportionality and precaution. According to the principle of distinction, those engaged in armed conflict must distinguish between legitimate targets (combatants) and those not taking part in the fight (civilians). Proportionality seeks to reduce the risks to civilians by requiring that the means and methods of an attack are proportional to the anticipated military advantage. Precaution requires that combatants take into account the presence of civilians in order to avoid, or at least minimise, harm.1
While IHL protects non-combatants in war, IRL focuses more specifically on the protection of refugees, including those displaced by war. Originally a response to the mass displacement in Europe following World War II, refugee law expanded in scope as the problem of displacement spread around the world. The 1951 Refugee Convention and its 1967 Additional Protocol define who is a refugee, articulate the rights of refugees, and assign a set of obligations to states. Under these laws - particularly the underlying principle of non-refoulement - a state cannot force a refugee or asylum seeker to return to the country where they are liable to be persecuted. Furthermore, the convention sets out the minimum standards for the treatment of refugees, including the basic social and economic rights to which they are entitled.
IRL is a subset of IHRL, which lays down the obligations of states towards citizens and others within their jurisdiction. Traditionally, IHRL was seen as distinct from IHL, the former protecting people from abuses of power, the latter regulating the conduct of armed actors during times of war. However, there has increasingly been a recognition that IHRL complements the protections provided by IHL, with the two legal frameworks applying concurrently (see, e.g., Droege,
2007, p. 316). This appears specifically in the growing array of human rights conventions that are pertinent to protection in armed conflict. ’ In addition to this treaty-based international law, the 1948 Universal Declaration of Human Rights includes a number of articles relevant to humanitarian protection, many of which are now considered customary law and hence binding on all states.
In simple terms, this interrelated set of legal and normative frameworks can be understood as an agreement between key actors. They represent a codification of agreed behaviour when interstate politics evolves into armed conflict. First, they recognise that the obligations of states and the rights of individuals outlined in international law also apply in times of armed conflict. Furthermore, under these agreed rules of war, combatants are to show restraint, and civilians are to be left alone, provided they do not take part in the conflict.
A small but significant component of this agreement is the right of humanitarian organisations to promote the protection of civilians and provide assistance. The ethical framework known as the humanitarian principles, in particular the well-known ideas of impartiality, neutrality and independence, represent humanitarianism’s side of this agreement.*’ The argument goes that armed actors will honour their side of the agreement and provide access to populations at risk if humanitarians honour the principles of political neutrality and impartiality. That is to say they generate access through “a ‘deal’ whereby the belligerents agree to respect humanitarian principles, and humanitarians will not interfere in conflicts” (Leader, 2000, p. 2). Essentially, the principles of impartiality, neutrality and independence combine to construct an environment in which humanitarians can operate - a humanitarian space.