This paper examines the relationship between the legal framework of international humanitarian law (IHL) and civil society actors operating in conflict situations. Attention is paid to assessing the manner in which the latter can play a role in strengthening the humanitarian dimension of the former. Brief introductory comments are warranted so as to situate the debate, in which non-governmental organizations (NGOs) operating in a conflict zone are adopted as the primary unit of analysis.
IHL is the field of public international law which regulates the conduct of hostilities, namely restricting the means and methods of warfare available to parties to the conflict, and laying out protections afforded civilians and those no longer taking part in hostilities (hors de combat). State-centric in its development, the central tenets of IHL are found in the Hague Regulations of 1907, the four Geneva Conventions of 1949 and the two Protocols Additional to the Geneva Conventions of 1977. It is the right of sovereign states to decide which treaty-based international legal obligations they adopt regarding the legal regulation of the conduct of armed conflicts, however a number of legal provisions of IHL have attained the status of customary international law, and are thus binding on all parties to the conflict. This raises questions in regards to the status of non-state actors under international humanitarian law. The legal position of such actors, which for the purpose of this paper will focus on international organizations and non-governmental organizations, warrants close examination.
It is against this legal backdrop, that most textbooks dealing with IHL are concerned primarily with the substance of the norms composing this legal framework, as well as with the process through which states, sometimes under the auspices of an intergovernmental organization, come to agree upon a certain legal rule. Under such an approach, international law may seem to take place at the highest diplomatic echelons of states, while being subsequently applied to all parties, both state and non-state, on the ground.
In the development of international law, states have agreed upon the establishment of intergovernmental organizations, most prominently the United Nations (UN), with its many specialized agencies. A number of these agencies play a prominent role in unstable environments, be it before, during, or after an armed conflict. Additionally, some states themselves have created state-controlled agencies (for example the creation of USAID by the American government) for which a central objective is to provide humanitarian assistance in conflict zones. Instead of focusing upon these ‘classic’ state actors which give shape to the formulation and implementation of IHL in some sort of a “stubborn persistence of the state-centered view of international law,”1 this paper will focus on civil society, an often overlooked actor which has a role to play, not only in zones of armed conflict as such for their work on the ground, but also vis-à-vis the legal norms that are applicable in such an environment. As neither a state nor an intergovernmental organization, and as a significant portion of civil society, NGOs have a key role to play, both normatively speaking and as demonstrated by past experience. Indeed, NGOs are often indispensable operational partners for the implementation of the programs initiated by other actors, including the UN.2 A natural question which follows is thus whether NGOs are also actors in their own right under IHL.
This paper’s central purpose is to provide a general overview of engagement with IHL by NGOs. The question is raised in terms of the opportunities, and sometimes even of rights, which IHL affords NGOs as regards the provision of protection to victims of an armed conflict. Concomitantly, the constraints IHL imposes regarding the framework under which NGOs work is examined.
Given the fact that the IHL framework has provided for a unique legal position – both in terms of rights and responsibilities – for the International Committee of the Red Cross (ICRC) and, to a somewhat lesser extent, to National Red Cross Societies, Section I of this paper will set out the basic elements necessary to understand the unique position of the Red Cross family. Building upon that, Section II will demonstrate how ‘non-Red Cross NGOs’ have a complementary role to play in relation to the functions of the ICRC, when it comes to influencing respect for, and attempting to promote further development of, IHL protection mechanisms. This analysis will, first, require an assessment of what role such NGOs have been attributed by states in IHL treaties, thus allowing a subsequent concentration on the rights and constraints NGOs face when wishing to provide humanitarian assistance or medical services in an environment where IHL applies.
As it will follow from this analysis that classic IHL imposes some constraints on the modes of actions that are acceptable for NGOs wishing to derive rights directly from IHL, Section III will seek to analyze, from the legal point of view, what happens when NGOs speak out about what they observe on the ground. Firstly, this can take place through the issuance of reports to ensure word gets out to the world about the situation on the ground. Here the real challenge will be for NGOs, most of which are accustomed to human rights law discourse, to acknowledge and incorporate IHL mechanisms and discourse. Apart from attempting to create awareness among public opinion by such reports, NGO- authored reports can also be used when approaching states and criminal tribunals. Therefore, a second part of this section will provide past examples demonstrating that even ‘small’ NGOs with a limited staff, can have an impact. This can be done by sharing their experience with states or tribunals in support of the adoption of new international law with a humanitarian inspiration, or to consider the prosecution of egregious violations. Similarly, NGOs wishing to promote the cause of IHL can play an important role by engaging with the belligerents themselves.
1Chayes, Abram and Chayes, Antonia Handler. “The New Sovereignty. Compliance with International Regulatory Agreements,” Harvard University Press, 1995, 250 & foll.
2Beigbeder, Yves. “The Role and Status of International Humanitarian Volunteers and Organizations. The right and duty to humanitarian assistance,” Martinus Nijhoff Publishers, 1991, 61.