After a deadly airstrike in Douma, Syria, men carry a casuality out of the rubble, April 13, 2014. (REUTERS/Bassam Khabieh)
Against the backdrop of appalling violence against civilians in Syria, South Sudan, and the Central African Republic, along with the persistent obstruction of humanitarian aid around the world, international humanitarian law may appear redundant in the twenty-first century. Initially designed with interstate wars in mind, one of the main objectives of this body of law is to limit the effects of conflict on people who are not, or no longer, participating in hostilities, especially civilians. Nowadays, the lines between combatants and civilians are often blurred, and improving compliance with the law remains a significant challenge.
However, Françoise Bouchet-Saulnier, legal director of Doctors Without Borders and author of the book The Practical Guide to Humanitarian Law, has a different take. “If humanitarian law is not respected today, this does not show that it is ill-adapted to conflict,” Ms. Bouchet-Saulnier said in an interview with the Global Observatory. Acknowledging that the law is more often violated than not, Ms. Bouchet Saulnier stressed that “what is important is that [the] law frames what must be respected.”
The issue of protecting civilians is at the center of the humanitarian challenge today because armed groups and armies try to avoid direct confrontation and find soft targets, according to Ms. Bouchet-Saulnier, but the fact that “civilians are the soft target of war” is “not new at all.” As such, “the protection of civilians and humanitarian relief to the civilian population and victims of conflict remains an essential battle, and it has to be fought,” said Ms. Bouchet-Saulnier. “This is as old as the history of conflict,” she said, “Things have never been better before.”
While Ms. Bouchet-Saulnier agreed that there is “a real legal asymmetry” between state and nonstate armed groups in today’s mostly internal conflicts, which creates “practical problems,” international humanitarian law is not only applicable and relevant to international conflicts—for which it was initially developed—but also to those that happen within states.
In Syria, “the fact that you cannot clearly identify the hierarchical chain of command of the opposition and the fact that it’s not one single nonstate armed group fighting with the governmental forces—this is just the reality,” Ms. Bouchet-Saulnier said. “But still, the distinction between civilian and combatant is possible.”
In addition, the protocols added to the body of international humanitarian law in 1977 “get rid of this distinction between civilian and combatant,” she said. “What is really of interest is the situation of the victim of the conflict,” and even a combatant can become a victim: “a civilian or a combatant is of interest to international humanitarian law when he has become a victim—meaning he has lost power, because he’s wounded, because he’s sick, because he is detained.”
Ms. Bouchet-Saulnier also addressed the tension between the growing body of international criminal law, which abides by strict rules of interpretation, and the interpretation of humanitarian law, which should remain “very broad, to make sure it encompasses every situation that has not been envisaged before.” The strict rules of interpretation of international criminal law have nurtured the position promoted by some states, especially in the war on terror, that some of today’s wars—such as in Yemen or the Central African Republic—would fall into a third category of conflict not regulated by international humanitarian law. Such an approach is contrary to the spirit of humanitarian law where “every situation and individual must be covered with a system of mutually exclusive categories.”
In addition, to be effective, the International Criminal Court needs to be wary of building its cases on “the weakest elements of the system, which are the victims and the humanitarian organizations,” Ms. Bouchet-Saulnier said. In general, she suggested that pressuring humanitarian agencies to hand over evidence as part of a criminal case can negatively impact humanitarian access.