The Fragmentation of Humanitarian Security Under IHL

Publication Date: 
Friday, November 14, 2014
Congolese Red Cross team collecting dead bodies drive through rebel-held Goma  © Jessica Hatcher/IRIN

The Advanced Training Program on Humanitarian Action (ATHA) is taking an in-depth look at the growing trend of attacks on humanitarian workers and the operational challenges of undertaking humanitarian action in insecure settings. Attacks on humanitarian workers reached record levels last year, and this dangerous trend has continued this year. An ATHA blog post published last week examined how gender affects the security of humanitarian staff and highlighted critical gaps in knowledge and practice on gender-related security threats and responses. This blog post looks at how international humanitarian law (IHL) — and other sources of law — protect humanitarian actors in conflict settings, as well as the challenges that arise from the fragmentation of legal protection under IHL.

How does IHL protect humanitarian workers in conflict settings? In order to make relief operations possible, IHL grants special protection to certain categories of humanitarian personnel: namely, affiliates of the International Red Cross and Red Crescent Movement, United Nations (UN) personnel and affiliates, and other humanitarian personnel taking part in relief operations. Under IHL, all humanitarian personnel are also covered by the general protection afforded to the civilian population. In accordance with the IHL principle of distinction between combatants and civilians, belligerents may not target attacks against civilians or civilian objects, including humanitarians. Yet due to the fragmentation of special protections for humanitarian personnel under IHL, the exact nature of this protection differs depending largely on organizational affiliation.

First, the Geneva Conventions confer special rights and protections on medical services of armed forces, civilian hospitals in wartime, and affiliates of the International Red Cross and Red Crescent Movement — including national societies, the International Federation of Red Cross and Red Crescent Societies (IFRC), and the International Committee of the Red Cross (ICRC). Such persons and objects are solely entitled to use the distinctive red cross/red crescent emblem, a recognized and protected symbol under IHL. Deliberate attack against a person or object carrying the distinctive emblem constitutes a war crime under international law. The use of the distinctive emblem is strictly limited to these protected persons and objects outlined in the Conventions [GC I, art. 44)]; its use by other individuals or organizations is strictly prohibited [GC I, art. 53)], and states are required to prevent and repress its misuse [GC I, art. 54)]. Additional Protocol I further prohibits any improper or perfidious use of the emblem [AP I, art. 37 and 38]. Perfidious uses include misusing the distinctive emblem to deceive the enemy, which is considered a grave breach of the Convention and Additional Protocol [AP I, art. 85(3)(f)].

Second, UN and associated personnel are protected by the 1994 Convention on the Safety of U.N. and Associated Personnel, which stipulates that UN and associated personnel “shall not be made the object of attack or of any action that prevents them from discharging their mandate”[Art 7(1)], defines crimes against UN and associated personnel [Art. 9], and obliges states parties to “take all appropriate measures to ensure the safety and security of United Nations and associated personnel”[Art 7(2)]. However, the Convention required a declaration of risk by the Security Council or the General Assembly for operations to be covered. To correct for this limitation, the 2005 Optional Protocol to the Convention expanded of the scope of “operations” covered by the Convention to include a wider set of UN operations and associated personnel, namely those: (a) delivering humanitarian, political or development assistance in peacebuilding, or (b) delivering emergency humanitarian assistance. Furthermore, the 1998 Rome Statute of the International Criminal Court (ICC) defines as war crimes: intentional attacks against humanitarian personnel and assets in international armed conflicts [Article 8 (2) b. (iii) and (xxiv)]; and intentional attacks against humanitarian personnel and assets in non-international armed conflicts [Article 8 (2) e. (ii) and (iii)].

Third, for all other humanitarian personnel taking part in relief operations, according to the Geneva Conventions, states shall allow the free passage of consignments essential for the civilian population [GC IV, art. 23]. Under the Additional Protocols, the civilian population of a territory is entitled to assistance if not adequately provided; relief actions that are humanitarian and impartial in character may be undertaken [AP I, art. 69 ff. and AP II, art. 18]. Such relief is not to be regarded as interference in the armed conflict, and the Party receiving the supplies shall, to the fullest extent practicable, protect and facilitate the relief operations, [AP I, art. 70]. Personnel participating in relief actions shall also be respected and protected to the fullest extent practically possible, though under no circumstances may relief personnel exceed the terms of their mission [AP I, art. 71].

What are the consequences of these differing legal protections for various categories of humanitarian personnel? As the ICRC notes, “It appears that the personnel of humanitarian organizations are protected in an unequal manner and that the rules intended to guarantee their security are very widely scattered, thus leading to some confusion about the exact scope of such protection.” As this comment suggests, these provisions establish organizational affiliation as the primary determinant of special protection. Given the unique nature, mandates, and responsibilities of the UN and ICRC, for example, this distinction makes some degree of sense. Yet how does organizational affiliation affect aid worker security in the field? How does exposure to risk vary according to the type of organization, mandate, or operation? And does special protection under IHL correspond to greater security in the field?

Humanitarian Outcomes reports that local NGOs and national Red Cross/Red Crescent Societies suffered the most attacks in 2013 (43% of attacks), followed by international NGOs (28%), UN agencies (24%), and the ICRC (3%). These numbers may reflect the general distribution of aid workers in the field, since the majority of aid workers are affiliated with local or national NGOs. Yet without comparative data on the relative numbers of organizational affiliates in the field, it is hard to determine whether this violence is disproportionately targeted against certain types of organizations. Furthermore, the Aid Worker Security Database (AWSD) does not distinguish between staff of local NGOs and national Red Cross/Red Crescent Societies, making it difficult to determine the protective effect of the red cross/red crescent emblem itself, to which NGO staff are not entitled. While the red cross/red crescent emblem is highly respected in most settings, affiliates of the Red Cross/Red Crescent Movement, including the ICRC, have been specifically targeted or indiscriminately attacked in some conflicts. Most attacks, however, have been committed against national or international NGO staff who do not enjoy the protection of a distinctive emblem or convention. In either instance, much work remains to be done in implementing and enforcing these protections for humanitarians in conflict settings, especially with regard to preventing and punishing violations by non-state armed actors. It is also important for humanitarians to understand where and how the law protects them, and where it falls short, considering the fragmentation of humanitarian security under IHL.

For a more detailed exploration of security challenges and threats facing humanitarian workers, and operational responses to aid delivery in insecure settings, tune in to next week’s ATHA Podcast.

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