How can NGOs help promote international humanitarian law?

Since 1990, a rapidly growing number of field agencies have been working in situations of armed conflict. Though they appear to be engaged in similar activities when viewed from outside, each of these agencies has its own set of working methods and ethical standards. There is no real coordination between them, a reality that it has now become impossible to ignore.

Humanitarian law is based on the premise that though mankind is capable of great cruelty, compassion is also fundamental to our nature. The law was created to ensure a degree of humanity in the midst of war. Specifically, it protects certain categories of individuals – civilians (and their property) and combatants no longer taking part in the fighting (prisoners, the sick and wounded) – and restricts the means and methods of warfare used. As a result, war no longer occurs in a legal vacuum in which everything is permissible.

Multilateral humanitarian treaties began to be adopted in the nineteenth century but their underlying principles are much older and found in various cultures. Today, the main humanitarian treaties are the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. With 188 participating States, the Geneva Conventions are truly universal. At present, 148 and 140 States respectively are party to Additional Protocols I and II, which develop the provisions of the 1949 Conventions and adapt them to modern warfare. The four Geneva Conventions and Additional Protocol apply to conflict between States. Additional Protocol II and Article 3, common to all four Geneva Conventions, are applicable to internal conflicts. Thus, while international humanitarian law is intended first and foremost for governments, it is also applicable to non-governmental armed groups. It sets out who is entitled to protection, lays down the rights and obligations of the belligerents and provides a framework in which humanitarian activities can be carried out.

The International Committee of the Red Cross (ICRC) has a specific mandate from the States to monitor the implementation of humanitarian law. The ICRC deals directly with governments and armed opposition groups to obtain greater compliance and appeals to the international community only as a last resort in the face of massive violations.

The ICRC also has the task of paving the way for the development of humanitarian law, to ensure international rules keep pace with changes in warfare itself. The organisation is uniquely placed for such a mission.

The ICRC – the traditional ‘guardian’ of international humanitarian law – is specifically entitled by the law to visit prisoners of war and to monitor the circumstances of civilians protected by the Fourth Geneva Convention. The community of States has also conferred on it the right to offer its humanitarian services to those party to an armed conflict, including internal conflicts.

Why the ICRC? Certainly, the ICRC has no monopoly on promoting compliance with international humanitarian law. The States party to the Geneva Conventions have a key responsibility in ensuring that they are respected by other States. There may also be a great deal that NGOs can do in this regard. Thus far, however, the only debate on such a role has been in the form of a workshop organised by the ICRC in 1996 for a limited number of NGOs. Some NGOs then felt they had inadequate knowledge of humanitarian law nor a sufficient mandate to take action in this regard. Therefore they often looked to the ICRC for guidance (though some did attempt to act on their own despite their limited knowledge of the law). The NGOs were generally better versed in human rights issues. It was also pointed out that governments hostile to human rights law might also find grounds for rejecting humanitarian law if the two were seen to be linked. One of the unresolved questions was whether human rights organisations should promote ratification of humanitarian law treaties. There was a consensus, however, that NGOs definitely had a role to play in assessing situations in the field and advocating compliance with legal standards.

Humanitarian law provides a framework in which NGOs too can work in connection with armed conflicts. Let us look here at internal armed conflicts. Article 3 common to the four Geneva Conventions provides a legal basis on which impartial humanitarian organisations may offer their services to warring parties. [1] Protocol II additional to the Geneva Conventions states that if the civilian population has been deprived of objects essential to its survival, relief action of an exclusively humanitarian and impartial nature may be undertaken (Article 18). Governments are expected to give their approval for such impartial humanitarian relief work. It is important for NGOs to be aware that those provisions exist and to pay due attention to the principles set out in them, i.e. the obligatory humanitarian and impartial nature of the activity.

One important question is whether NGOs should approach the authorities – whether governmental or de facto authorities – to improve protection for war victims. The answer varies according to the situation and the accessibility of those holding power. A good knowledge of the law and the rights and obligations it sets out, would certainly help humanitarian workers to be more effective in this area.

What should NGOs do when they witness violations of humanitarian law? Should they publicly denounce the violations? Or should they look for ways to change the conduct of those who committed them? Are these two approaches incompatible? If a large number of NGOs are present in the field, should they co-ordinate and standardise their approach?

Experience shows that it is very difficult to undertake effective field work on behalf of the victims while at the same time denouncing violations. One activity tends to rule out the other. This does not mean, of course, that both approaches cannot be taken in a complementary manner by different organisations, i.e. denunciation by an organisation not working in the field and fieldwork by an organisation that scrupulously avoids public denunciation. As an organisation massively engaged in fieldwork, the ICRC takes a pragmatic approach and keeps its representations to violators confidential. Only when discretion proves ineffective does it publicly denounce severe violations of humanitarian law.

There are grey areas in which it is not immediately clear which body of law – humanitarian law or human rights law – is applicable, or in which certain rules need to be interpreted. Sometimes there is scope for several different interpretations. If every NGO interprets the law in its own way and then approaches the warring parties on that basis, the result may be severe confusion. The parties to the conflict will exploit any disagreement and confusion and then play one organisation off against another. This will not only be detrimental to the victims themselves but may put humanitarian workers at risk.

It is therefore extremely important for all those – NGOs included – who promote compliance with international humanitarian law to ensure a concerted approach. How can this be achieved? With its long experience and its mandate to promote and safeguard humanitarian law, the ICRC can act as a focal point. It can both do more to make clear its own role and working procedures and facilitate dialogue between humanitarian agencies with an operational interest in the subject. This wide array of organisations must somehow agree about how a situation should be defined in terms of the law and about which rules apply. Discussions should be held about how best to approach the various authorities and the appropriateness of publicly denouncing violations. The ICRC could also provide training in the field of humanitarian law for NGO staff. In any case it could play a consultative role. An extension of any such activity by the ICRC is limited however by the availability of existing resources. More training in humanitarian law for instance, would require additional funds and additional staff, something for which the organisation does not have the necessary resources at present.

Risks are greater if different organisation base their work on different principles and employ different criteria to assess that work. International humanitarian law lays down basic principles for humanitarian action, in particular neutrality and impartiality. Attempts have already been made to set universal standards for conduct in the field of emergency relief (see, for example, the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, RRN Network Paper 7, 1994).

An increased dialogue within the humanitarian community – on a legal as well as an operational level – should lead to more coherent action and would thus help to meet the needs of the victims. A more professional humanitarian response would contribute to improve the security of humanitarian personnel in the field, which in turn would make access to those in need easier.

The opinions expressed are those of the authors and do not necessarily reflect the view of the ICRC.

[1] Paragraph 2 : “An impartial body such as the ICRC may offer its services to the Parties to the conflict.”