The Protection of Civilians in Armed Conflicts: well-trodden paths and new ways forwardSeptember 27, 2016 - nr.102
Summary, conclusions and recommendations
The subject of this advisory report is both topical and urgent. Entire societies that until recently were relatively prosperous are being disrupted or destroyed. People are losing their lives, becoming disabled, losing their livelihoods, or being displaced. This causes untold human suffering. States, international organisations and non-governmental organisations irrefutably have a responsibility to protect civilians, including those in third countries, from large-scale violence. In the first place this is the obligation of the state in which these people are located and of the non-state armed groups that are active there. This advisory report is not about their obligations or options as regards protecting the civilian population, but about the means at the disposal of other states, international organisations, and non-governmental organisations to fulfil this moral imperative when states and non-state armed groups prove unwilling or unable to fulfil their duties.
This advisory report has argued that the existing instruments for the protection of the civilian population are insufficiently effective, partly as a result of the changed nature of armed conflicts. The numbers of civilian casualties in armed conflicts are unacceptably high, in spite of the existence of a solid normative framework, consisting of international humanitarian law, human rights law, and refugee law. There is insufficient compliance with international law, which is sometimes intentionally violated and even abused. International missions do not achieve sufficient success in fulfilling their mandates for the protection of civilians. In short, there is a gap between objectives and results achieved. On the one hand, the existing instruments must be improved, while on the other hand new avenues need to be explored to provide better protection to civilians during armed conflicts. This advisory report examines what third countries, international organisations and non-governmental organisations can do to promote the protection of the civilian population in conflict countries. It pays particular attention to prevention and conflict mediation. The report gives examples of ways in which existing instruments can be improved and suggests new ways forward: using social media to alert civilians, implementing the Kigali Principles to improve the fulfilment of international missions’ mandates, and persuading non-state armed groups to agree to be bound by international law by getting them to sign Deeds of Commitment. In addition, the AIV concludes that too little is being invested in the prevention of armed conflicts. In this connection it is important to seek out methods that imply less visible intervention in domestic affairs, creating a better balance between the principle of non-intervention and the responsibilities of states, international organisations and non-governmental organisations to protect the civilian population in third countries.
These actors have a moral imperative to take responsibility for preventing large-scale violence against the civilian population in their own and other countries. International law reflects this moral imperative.
Recommendation 1: The Netherlands should encourage international debate on the need to take responsibility to prevent conflicts, both nationally and internationally.
Definition of protection of the civilian population and demarcation from the Responsibility to Protect
At international level no agreement has yet been reached on a definition of protection of the civilian population. In this advisory report, ‘protection of the civilian population’ is defined as follows: all activities geared towards promoting the safety, physical integrity, and dignity of the civilian population, in particular of vulnerable groups; prevention of war crimes and other acts of violence against civilians; safeguarding humanitarian access, and promoting full respect for the rights of the individual, in accordance with international law, in particular human rights and international humanitarian law. In Chapter II, the concept ‘protection of the civilian population’ is distinguished from the concept of ‘responsibility to protect’.
The present advisory report defines the civilian population as all those who are subject to the jurisdiction of a state, with the exception of combatants during an armed conflict. The distinction between civilians and combatants is essential to international humanitarian law, which applies only during a violent armed conflict. The situation of refugees has not been considered here. The advisory report focuses on the civilian population within conflict areas. A proper consideration of the problem of the protection of refugees would require, and indeed merits, a separate study, which could not be carried out within the scope of this advisory report.
The nature of modern conflicts: complexity and urbanisation
The nature of conflicts has been transformed over the past few decades. Modern conflicts are generally complex domestic conflicts. Nonetheless, they frequently have international dimensions. They are complex because they involve a whole range of different actors and are frequently multi-layered. In addition, conflicts are fought out more and more frequently in and around cities. The distinction between civilians and combatants, which is the organising principle of international humanitarian law, has become blurred as a result of these developments. Sometimes combatants deliberately seek to avoid distinguishing themselves from civilians. Furthermore, compliance with the law is very unsatisfactory, both by states and by movements such as Daesh, for instance, which place themselves outside the legal order or even abuse international law. This limits the effectiveness of the provisions of international law that apply to the protection of civilians in armed conflicts. In addition, these developments exacerbate the vulnerability of civilians. The legal frameworks are not sufficiently attuned to the nature and complexity of the conflicts, and both political efforts and capacity for protection have proven inadequate. There is therefore a considerable gap between the objective of protecting the civilian population and reality. Academics and non-governmental organisations are searching for new ways to promote compliance with international law by non-state armed groups. Analysis of the underlying reasons for attacks on civilians by parties to a conflict will benefit efforts to tackle the problem. In addition, non-governmental organisations are making agreements with non-state armed groups regarding compliance with international law and the monitoring of this compliance.
Given that the causes and symptoms of complex crises are closely interrelated, an integrated approach is essential at every phase of crisis management. For the prevention of conflicts during an armed conflict, and in the post-conflict phase, a range of instruments must be deployed cohesively and simultaneously. States, international organisations and non-governmental organisations each have their own comparative advantages and can therefore supplement each other. The distinction between relations with states and those with armed non-state parties is important. For instance, nongovernmental organisations are subject to fewer political and legal restrictions in their communications with armed non-state actors. They can play a specific role in mediation in all phases of a conflict. This advisory report has named several examples of nongovernmental organisations that fulfil such a role: Geneva Call, PAX, Sant’Egidio, the Carter Center, the Centre for Humanitarian Dialogue and the European Institute of Peace. Dialogue with local civil society and other organisations is key to making an adequate analysis of the conflict and to gaining a good picture of perceptions among the local population regarding international involvement. Which actors and instruments should play a more or less prominent role in this regard will depend on the specific context.
Recommendation 2: The Netherlands should make more use of the comparative advantages of non-governmental organisations and make the necessary funding available to do so. The Netherlands should support organisations that maintain open communication channels with as many parties to a conflict as possible, so as to be able to inform nonstate armed groups of their obligations under international law regarding the protection of the civilian population, to encourage them to pledge to be bound by that international law, and to be able to call them to account for any non-compliance with these norms.
Social media present new opportunities and at the same time create new risks for the protection of civilians. Numerous ad hoc informal partnerships are being set up on social media for this purpose. The Netherlands possesses expertise in information and communications technology, which can be used for this purpose.
Recommendation 3: Where human rights defenders who use social media are subjected to real threats, the Dutch government should support them by actively contributing to the deployment of expertise.
The issue of protecting civilians in armed conflicts is relevant to many other subject areas: refugees, humanitarian aid, military interventions, the causes of conflicts, the role and status of non-state armed groups, and so on. A separate advisory report could be devoted to each one of these areas. The AIV is willing and indeed intends to study a number of these areas in the near future.
The legal framework
The legal framework for individual states and (other) warring parties to protect the civilian population that is subject to their jurisdiction is clear and is scarcely disputed, despite the serious shortcomings in compliance. This framework is made up of international humanitarian law, refugee law and human rights law. International humanitarian law centres on the distinction between military targets on the one hand and civilians and civilian objects on the other. Non-state armed groups, private military companies and other companies also have an obligation to avoid harm to the civilian population during hostilities and to respect human rights, although the relevant legal framework for these actors is less well-developed than for states. International humanitarian law applies during an armed conflict. Human rights law and refugee law also apply during the latent-conflict and post-conflict phases.
The protection of the civilian population is in the first place the obligation of the state in which they are located. Where this state is unwilling or unable to provide the necessary protection, there is a wide range of instruments that other actors can deploy to exhort or support the state, to put it under pressure or threaten it, or to compel the state to protect civilians. Furthermore, a number of these instruments can be used for the same objectives vis-à-vis non-state armed groups and leaders. The deployment of these instruments is subject to two main legal restrictions. States may not interfere in the internal affairs of another state, although states may remind each other of the obligations they have entered into, for instance in the framework of human rights conventions. Furthermore, states can call each other to account regarding their obligation to protect the civilian population, given that this is an aspect of sovereignty. The second restriction is that the use of force is admissible only in exceptional cases. The UN Security Council is competent to authorise exceptions to both these restrictions. These restrictions aside, states and other actors have considerable legal licence to exhort or support states, to put them under pressure or threaten them, or to compel them to protect the civilian population. If the parties to a conflict remain unable or unwilling to protect the civilian population, other states, international organisations or non-state actors can themselves take initiatives to protect the civilian population. Resolution 1325 of the UN Security Council contains guidelines for the role that women can play in the activities developed by states to prevent, control and resolve conflicts.
Recommendation 4: Violence against the civilian population is often encouraged, committed or permitted by leaders of parties to an armed conflict. In all phases of a conflict, international bodies (the UN, the Human Rights Council, the EU, the Council of Europe, the OSCE, the African Union) should do more to remind the leaders of parties to armed conflicts of their responsibilities under international law regarding the protection of the civilian population and to warn them that they may be called to account for their actions in due course, whether at national level or before the International Criminal Court or another international tribunal. The Netherlands should set an example in this regard.
To prevent a latent conflict erupting into violence, gathering intelligence on events on the ground is essential. There is generally no lack of information; rather, information is dispersed among many sources and actors. There are many public sources from which signals can be picked up regarding latent conflicts, such as the local population, refugees in the diaspora, local media, reports issued by local and other civil society organisations, and documents issued by the Human Rights Council. Social media play an ever greater role in modern conflicts and thus contain a wealth of information that could be exploited to better effect. Flows of displaced people and refugees are also a clear indicator of growing tensions. In addition, states have embassies and intelligence services at their disposal that fulfil this information-gathering role. International organisations are dependent on member states to gather secret information. It is important to dismantle existing barriers that hamper exchanges of available information among partners. Existing databases maintained by academic institutions and nongovernmental organisations can be used to create an annual monitor of latent conflicts. The European Commission could ask a number of institutions to contribute to the preparation of an annual monitor for the Foreign Affairs Council. In practice, latent conflicts are not always placed on the agendas of such bodies, and an annual monitor could help to institutionalise such inclusion. Within the EU, this could assume a form comparable to that of the financial-economic semester. This would emphasise the urgency of these issues and create political pressure for international involvement. Efforts could likewise be made to achieve the systematic inclusion of latent conflicts on the agenda within the UN.
Recommendation 5: The Netherlands, together with other countries, should encourage international organisations and non-governmental organisations to keep existing databases of latent conflicts up to date and exploit them to maximum effect as a basis for a cohesive strategy to prevent latent conflicts erupting into full-scale violence. Following on from this, the Netherlands should promote the systematic inclusion of latent conflicts on the agenda within the EU and the UN.
Many regional organisations and non-governmental organisations develop capabilities for conflict prevention. Prevention can ward off a great deal of human suffering and is considerably less costly than deploying an international mission during an armed conflict. The scope for influencing parties to a conflict is greatest when the conflict has not yet erupted into full-scale violence. The AIV believes that more effort should be invested in preventive diplomacy and conflict prevention.
Preventive diplomacy seeks to forge agreement in the short term between parties to a dispute or conflict, with a view to preventing the outbreak of violent conflict. Conflict prevention is about reducing or eliminating risks that could lead to the outbreak of a violent conflict.
During a latent conflict, there is a tension between the protection of the civilian population on the one hand and the principle of non-intervention in domestic affairs (sovereignty) on the other. The threats to the civilian population often relate to domestic tensions, and so the involvement of foreign actors will almost always amount to interference in domestic affairs.
Because of this tension, preventive diplomacy is at its most effective when it takes place confidentially, behind the scenes. It is therefore advisable to leave such activities to mediators acting on behalf of an international organisation. Specific preventive activities should preferably not feature on the agenda of an international organisation, since this would be a breach of confidentiality. Most international organisations’ instruments for preventive diplomacy are as yet underdeveloped and underfunded. Maintaining open communication channels with the warring parties is essential to effective efforts in this area. Preventive diplomacy is contingent on the long-term commitment of highly qualified negotiators.
Conflict prevention may assume many forms, such as development cooperation, the preventive deployment of a military mission, arbitration, coercive measures (e.g. an arms embargo), the prosecution of perpetrators, the strengthening of the rule of law, and security sector reform. Climate change and trade in illegal small arms are factors that can aggravate conflict. Efforts to combat them can support conflict prevention.
Recommendation 6: The Netherlands should encourage international organisations to make a larger share of their regular financial resources available to develop autonomous initiatives for preventive diplomacy and conflict prevention. In addition, the Netherlands should itself help shape this emphasis on preventive diplomacy and conflict prevention by making contributions to international organisations and non-governmental organisations that are earmarked for this specific purpose.
If a conflict erupts into violence, efforts to achieve peace enjoy the highest priority. The warring parties must be brought together as soon as possible with the aim of achieving a ceasefire and making agreements about humanitarian access and the protection of the civilian population. In this phase, the warring parties can be put under pressure, for instance by cutting off their financing or by imposing an arms embargo.
In a violent conflict it is imperative to consider not only the (limited) resources of governments but also the independent role of civil society. Non-governmental organisations in the Netherlands and in conflict regions work in close partnership, particularly in times of conflict. Local groups work together with Dutch organisations to move population groups rapidly to places of safety (as happened in Burundi, Libya, Yemen and Syria, for instance), to launch negotiations with the warring parties, and to safeguard local communications structures. Here too, the integrated approach is crucial: civil society organisations play an important role in the protection of civilians.
In principle, the only way to legitimise intervention by other states and actors in a conflict country is to obtain a mandate from the UN Security Council. In practice, there are many obstacles to obtaining such a mandate and translating it into the effective protection of the civilian population. These include geopolitical considerations, the need for the consent of the conflict country, a lack of willingness to call conflict countries to account for violations of international humanitarian law, the limited capacity of military missions, differences between troop-contributing countries in their willingness to use force for the protection of the civilian population or to place themselves at risk, and the impact on the peace process. The Kigali Principles, to which the Netherlands is one of the signatory countries, were formulated to overcome these obstacles.
International military missions are modest in size compared with the size of conflict countries and their populations. It is not feasible, either politically or financially, to deploy enough troops to give adequate protection to the entire civilian population in all conflict regions. Troop-contributing countries can increase the effectiveness of their efforts by training and conducting exercises together. In addition, political opinion is divided as to the ways in which mandates should be translated into the protection of the civilian population on the ground. International military missions must use force with restraint. Besides stepping up financial and political efforts in the areas of preventive diplomacy and conflict prevention, it is also imperative to actively explore what new concepts, instruments and flexible partnerships could be used to protect the civilian population during modern conflicts.
The three traditional principles for the deployment of UN peace missions are: the consent of the warring parties, impartiality and the limited use of force. These principles are difficult to apply in complex domestic conflicts, but various troop-contributing countries nonetheless adhere to them. This results in unclear mandates, differences of opinion concerning the definition of ‘protection of the civilian population’ and a reluctance to take action to protect civilians. It should be noted that a shift can be traced in the practice of UN peace missions over the past 15 to 20 years away from typical Chapter VI operations towards operations based on so-called mixed mandates (Chapters VI and VII). Operations under Chapter VII permit more robust military action.
The needs of the local population should serve as a key point of departure when planning activities relating to the physical protection of the civilian population on the ground. To this end, consultations must be held with the local population (including vulnerable groups, since they will have specific needs). Holding such consultations will increase the effectiveness of protection and will create realistic expectations among the local population.
The advisory report notes that military doctrines for the protection of the civilian population are as yet poorly developed, that mandates and rules of engagement provide sufficient scope for the protection of the civilian population, but that the capacity of international missions is generally insufficient for the proper performance of all the tasks in their mandates. The Kigali Principles call on countries to make the necessary resources available to bridge the gap between mandate and resources. The AIV wholeheartedly supports the pioneering role that the Netherlands and Rwanda have taken in this regard. Another way of bridging the gap between mandate and resources is by adopting sequenced mandates to make them less ambitious. In practice, the leadership of mission commanders plays a crucial role.
Recommendation 7: The Netherlands should provide active support to troop-contributing countries, where necessary or desirable, to ensure that they are well prepared before taking part in military missions seeking to protect the civilian population. This could take the form of offering training sessions for military commanders and if necessary also for other members of international missions. The effective deployment of military assets could be further improved by troop-contributing countries undertaking joint training and exercises. The Netherlands should play a leading role in promoting this.
In this phase, attention will focus inter alia on removing the causes of the conflict, demobilising and reintegrating troops, reforming the security sector, undertaking efforts to achieve reconciliation and bringing war criminals to justice.
After a peace agreement or ceasefire has been concluded, the hostilities should come to an end. In practice, however, the violence of war continues to pose a risk to the civilian population in the post-conflict phase. The state’s monopoly on the use of force often continues to be challenged and institutions are weak. If government troops are among those guilty of violating the physical and mental integrity of the civilian population, an international mission will find itself faced with tension between the task of protecting the civilian population and the task of reforming and strengthening the local police and armed forces. After all, the latter efforts could actually increase the capacity of the local police and armed forces to violate the physical and mental integrity of the civilian population. Against this background, the long-term presence of international missions is desirable to simultaneously strengthen institutions, to help establish the state’s monopoly on the use of force and to promote respect for human rights. Inadequate efforts on the part of states and of international and non-governmental organisations increase the risk of a country sliding back into armed conflict.
Recommendation 8: The Netherlands should undertake a longer-term commitment in postconflict phases, especially in cases in which the Netherlands was involved in brokering the end to a violent armed conflict.
One aspect that frequently receives too little attention in post-conflict situations is the matter of remedial measures for victims of violations of international humanitarian law and human rights. This is an area of international law that is as yet poorly developed. Such reparations may take different forms, such as compensation for lost property or the restoration of property that has been seized, political leaders offering their apologies in recognition of the suffering that has been caused, bringing perpetrators to justice, or truth-finding. Reparations may be material and/or symbolic. The precise form that is chosen will necessarily depend on the context and on the victims’ wishes. Although the norm that victims have a right to reparations from states, companies or international organisations is gradually gaining acceptance, the practical scope for victims to actually obtain such reparations is very limited.
Recommendation 9: The Netherlands should encourage troop-contributing countries to acknowledge their liability for any violations of international law that may be committed by members of their missions under the flag of an international organisation. The Netherlands should urge them to provide transparency and to develop policy for remedial measures.
The use of force with the aim of protecting civilians in conflict regions may unintentionally lead to casualties among the civilian population. Military commanders sometimes have to make a difficult choice between preventing future violence against civilians inflicted by the warring parties and the possibility of civilian casualties being caused by the mission’s own actions (collateral damage). Such collateral damage must be distinguished from the above-mentioned violations of international law. The United States has announced its intention to provide transparency, to accept its responsibility and to offer ex gratia payments to victims or their next of kin.
Recommendation 10: The Netherlands should encourage countries taking part in military missions under the flag of an international organisation of which the Netherlands is a member to provide transparency regarding collateral damage, accept responsibility and make (financial) reparations to victims or their next of kin.
Membership of the UN Security Council
In 2018 the Netherlands will be a member of the UN Security Council. The Netherlands will hold the Presidency for the period of one month. This presents a special opportunity to launch initiatives.
Recommendation 11: The Netherlands can exploit the opportunity afforded by its membership of the UN Security Council by drawing attention to one or more of the following themes, for instance by placing them on the agenda of one of the UN Security Council’s meetings: ways of enforcing compliance with international humanitarian law; the selection and training of troops to be sent on a mission; the role of social media in early warning mechanisms and during violent conflicts; and the moral imperative of states, non-governmental organisations and international organisations to take responsibility for preventing conflicts.
Professor Jaap de Hoop Scheffer
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague
Date 12 November 2015
Re Request for advice on civilian protection in armed conflicts
Dear Professor De Hoop Scheffer,
In late October 2015, the Secretary-General of the UN and Peter Maurer, President of the International Committee of the Red Cross, warned of the enormous impact of conflicts on civilians. In a joint press statement entitled ‘World at a Turning Point’ they called on states to take measures to improve the protection of civilians (POC) in armed conflict. The number of people fleeing their homes as a result of conflict and violence is now the highest since the Second World War: approximately 60 million.
Situations like those in Syria, South Sudan, Yemen and Nigeria are characterised by shocking forms of violence, attacks targeting civilians and a total lack of respect for life and human dignity. In addition, specific groups of civilians (religious minorities, women and girls, LGBTI people and journalists) are the target of sexual and other forms of violence, torture, kidnapping, forced displacement and recruitment into armed groups. The widespread and visible impunity associated with violations of civilians’ rights in conflict situations contributes to the spiral of violence and instability. And in most situations the international community does not succeed in protecting civilians effectively. In the Netherlands we are experiencing the consequences of this directly, as evidenced by the sharp increase in the number of refugees since the summer of 2015.
POC has its basis in international humanitarian law, refugee law and human rights law. Primary responsibility for POC rests with the national authorities of the country concerned. However, non-state parties to conflict also have responsibilities under international law, including customary international law. Where those parties are unwilling or unable to protect civilians, international actors have a role to play. The UN has the broadest mandate in this respect, stretching from conflict prevention to tackling impunity for crimes against civilians during conflict.
UNSC and UNSG
The UN Security Council (UNSC) addresses POC in the framework of various country situations on its agenda, for instance where POC is included in a peace mission’s mandate. However, it is clear that conflicting interests in the UNSC regularly impede rapid action. Syria is one of the most glaring examples of this.
The UN Department for Peacekeeping Operations distinguishes three possible ways of implementing POC: through dialogue, protection against physical violence and the creation of a ‘protective environment’.
In his 18-monthly reports to the UNSC, the Secretary-General of the UN (UNSG) discusses the five core challenges in POC: reinforcing compliance and accountability with regard to international law (especially during combat), engaging more systematically with non-state armed groups, reinforcing the role of peace operations in POC, improving humanitarian access and strengthening accountability for violations.
Three UN reports: a new direction?
At the request of the UNSG, a High-level Independent Panel chaired by former Timorese President José Ramos-Horta issued a report in June 2015 on the future of UN peace operations. One of the report’s key messages is that far more should be invested in tools such as conflict prevention and mediation, in order to resolve the problems that lead to conflicts. The question is what implications this recommendation has for the situations mentioned in this context and for Dutch policy on POC and human rights. An expert advisory group also issued a report this year on the UN peacebuilding architecture at the request of the UN member states, and a report was released on the implementation of UNSC resolution 1325 on women, peace and security (2000).
Dutch policy and efforts
The Netherlands underscores the importance of POC. This commitment follows from article 90 of the Dutch Constitution and is reflected in Dutch foreign policy as a whole. POC lies at the interface of human rights and security, as indicated in the 2012 policy memorandum ‘Protection of Civilians in Armed Conflict’, the 2013 International Security Strategy and the 2013 letter to parliament on human rights, ‘Justice and Respect for All’. Among other points, the POC policy memorandum addresses the Netherlands’ priorities in this area: conflict prevention, joint action with partners, the integrated approach, gender and ensuring sufficient capacity. The Netherlands has embedded POC in the assessment framework for constitutionally mandated letters to parliament on the deployment of military units abroad (‘article 100 letters’). The Netherlands also plays an active role in conflict areas with respect to its human rights priorities. It has identified POC as a policy priority, is a major donor of humanitarian aid and has endorsed the Kigali Principles on the Protection of Civilians.
Although a solid normative framework for POC has been put in place and the Netherlands is making good progress with its own integrated approach, the Dutch government has noted that in various parts of the world implementation is lagging far behind.
The government therefore requires further analysis of POC in a variety of situations around the world, and recommendations with regard to the added value of Dutch policy and efforts. With regard to the spectrum of conflict, the government is specifically interested in the conflict prevention phase.
This analysis should address the following individual questions:
How can Dutch policy on POC in relation to conflict prevention be fleshed out further?
How can the integrated approach be applied and improved to better address POC, with a special focus on the conflict prevention phase?
Which instruments and channels can the Netherlands utilise to this end, in terms not only of bilateral support and initiatives but also of multilateral and multi-stakeholder cooperation?
How can the Netherlands contribute to a better response, based on early warning mechanisms, for instance in the framework of the ‘Responsibility to Protect’ (R2P), both at intergovernmental level and in specific situations in the field?
If elected to a non-permanent seat on the UNSC, in what way could the Netherlands add value in the area of POC during its term?
I look forward to receiving your report.
Minister of Foreign Affairs of the Kingdom of the Netherlands