As Nature of Conflict Changes, Is International Humanitarian Law Still Relevant?

A man is carried out of the rubble after an air strike hit Douma, Syria, January 8, 2014. (Freedom House/Flickr)

A man is carried out of the rubble after an air strike hit Douma, Syria, January 8, 2014. (Freedom House/Flickr)

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.

The interview was conducted by Jérémie Labbé, Research Fellow for Humanitarian Affairs at the International Peace Institute. He tweets at  @jeremie_labbe.

Listen to interview (or download mp3):

I am here with Françoise Bouchet-Saulnier, Legal Director of the international medical organization Doctors Without Borders, known by its French acronym, MSF, which stands for Médecins Sans Frontières, and author of the book The Practical Guide to Humanitarian Law, the third English edition of which has just been published in the US. Françoise, thanks for being with us on the Global Observatory.

Let’s start with a startling paradox. International humanitarian law, also known as law of armed conflicts, is the most widely accepted body of international law, with virtually every single state in the world having ratified the 1949 Geneva Convention. Yet, from Syria to South Sudan and the Central African Republic, it remains blatantly disregarded and civilians continue to bear the brunt of conflict. Does this mean that humanitarian law devised in the twentieth century is not adapted anymore to the twenty-first century conflicts?

No, I think it would be a great danger to consider that international humanitarian law is not adapted anymore. There was an attempt to say that we have entered a new era of conflict. It was led by the United States during the war against terror—when they in fact invented this third type of conflict that would be completely new, that would require new rules, and pretending that the ancient one was not adapted. While, in fact, if humanitarian law is not respected today, this does not not show that it is ill-adapted to conflict. The fact that it is not respected shows that it is useful.

And law is never respected, per se. What is important is that law frames what must be respected. And international humanitarian law evolved slowly through the ages, starting with very small humanitarian issues like the medical mission, and then trying to enlarge this medical mission to the issue of detention, and then, in the Geneva Convention in 1949, it enlarged to the protection of civilian populations—meaning that before 1949, protection of civilian was not a matter for international humanitarian law.

So this evolution that has really culminated in 1949 with the issue of the protection of the civilian population is something quite new in humanitarian law, quite new and still at the core and at the center of the problem today because usually in situations of conflict, armed groups/armies try to fight avoiding direct confrontation and trying to find soft targets. And the civilians are the soft target of war, which is not new at all.

This is why it must be recalled that the protection of civilians and the humanitarian relief to the civilian population and to victims of conflict remains an essential battle, and it has to be fought. The military, the army, they fight together. The humanitarians, they must also stand for those rights. They are not granted, not even the medical mission, it’s not granted. You have to argue, you have to fight for it because it’s strategic. It’s so easy to target soft target trials  that you confront directly.

So, this is as old as the history of conflict, and the fact is that even if it is violated, it remains highly relevant and it remains a matter for major commitments from humanitarian organizations. There is no place for despair, no place to think that things were better before. Things have never been better before.

Still some would argue that most of international humanitarian law has been developed in an era where we had mostly states and regular armies fighting each other, and that today’s civilians are often at the center of conflict, at the center in terms of they’re the main target in some conflicts. Also, sometimes they’re very much the actors of violence: those taking up arms and creating some difficulties to identify them as civilians. And I’m thinking about Syria, I’m thinking about Central African Republic. So what would you respond to them?

I think that international humanitarian law is designed for parties to the conflict. There is effectively a kind of legal asymmetry in situations where parties to the conflict are a state on one side and nonstate actor on the other. The fact that international humanitarian law was developed first for international armed conflict was a reality after the Second World War. Now most of the conflicts are happening within a state, meaning that they are non-international armed conflicts. Nevertheless, there are international humanitarian laws applicable to it, which are mainly the additional protocols from 1977.

So, the mere fact of a conflict opposing the state and nonstate armed groups has already been codified. So it’s not new. It’s not new, per se, but it creates some kind of legal asymmetry and practical problems because those non-international armed conflicts tend to be very polarized, radicalized. But a look at the history of international armed conflict, [there] were not, you know, sort of gentlemen parties.

So there is a real legal asymmetry, but the rules that exist allow for a number of different provisions for relief on the one side, and a number of provisions for the restraint in the use of force. This use of force is not always restrained by the state in situations where the state pretends to act for the restoration of public order. Let’s take the example of Syria and the overuse of forces in the sake of restoring public order.

In the situation of Central African Republic, the situations are reversed: the state is completely absent, and there is a non-international armed conflict where the parties to the conflict are nonstate actors, the state is nowhere, and those nonstate actors are partially non-organized. But it does not change the reality that it’s easy in the field to [know] the difference between the one taking [up] arms and participating in the conflict and the one [who is a] victim of it. There are still civilians in this conflict, and there are members of armed groups, well organized or not well organized, fragmented or not.

Again, the same situation happened in Syria with the opposition being fragmented and not well organized; it doesn’t mean that it is not a conflict. 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.

But still, the distinction between civilian and combatant is possible. And if we look at the contribution of the additional protocols in 1977, in fact, it gets rid of this distinction between civilian and combatant. They only look at victim of the conflict because, in fact, 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, because he is besieged, because all that. So, today this distinction is not that relevant to international humanitarian law. What is really of interest is the situation of the victim of the conflict.

The ones that are able to fight, they fight—and they don’t need so much help. But by the time they need help, by the time they’ve fallen, it is a time where international humanitarian laws do recognize rights for the treatment, human treatment, and do recognize rights for impartial humanitarian organizations to take initiative to bring relief, including medical relief.

There is another paradox that I would like to discuss. In the introduction to your book, you mention somewhere that the development of international criminal jurisdictions and mechanisms which sanction violations of humanitarian law might have, paradoxically, been detrimental to the respect of this body of law. Isn’t it a bit counterintuitive? Can you explain this point?

I wouldn’t say detrimental to the implementation or the respect [of international humanitarian law], but what I want to say is that the interpretation of criminal law is completely different from the rules of interpretation of humanitarian law. Criminal law abides to strict rules of interpretation, which is usual and normal, while, when it comes to humanitarian law, you need and you must have very wide rules of interpretation because humanitarian law must cover all situations.

And in international humanitarian law, every situation or individual must be covered with a system of mutually exclusive categories. So, either it’s a war or it’s not a war, either you are a combatant or a civilian, but you cannot be nothing. It means that humanitarian law must be interpreted in good faith by analogy in an extensive manner, while when you look at humanitarian law through a sort of criminal prism, you are obliged to adopt a very restrictive interpretation.

Take the example of the definition of conflict. A number of lawyers have used the criminal jurisprudence to stick to the very word of articles of the Geneva Convention protocols regarding definition of conflict—every single word, comma, silence—which is not at all what humanitarian law is made for. I take the example of the definition of non-international armed conflicts just to remind that Common Article 3 was decided not to define those non-international armed conflicts—to make sure that they are defined only in opposition to  [the definition of] international armed conflict. This was very wise.

In 1977, there was a will to qualify more non-international armed conflicts to create more rights (more duties also) for parties to the conflict and for the government in such situations. But, for instance, Protocol II says a non-international armed conflict is a conflict occurring in the territory of a country between national armed forces and a dissident group.

If you look at Yemen, for example, you have conflict where a government is acting in the territory of another without having been directly exposed in its own territory. If you look at Central African Republic, you have a conflict occurring within the territory of Central African Republic without involving the governmental forces. So, all those conflicts fall into non-definition. If you have a very strict interpretation of those definitions, they are nothing.

There was also the question of what is happening in eastern Congo, a conflict that was said to be a transnational conflict where the territorial state doesn’t match with the place where the conflict is happening. So criminal jurisprudence has really fueled a number of doctrines saying that a number of conflicts are not defined in the Geneva Convention protocols and they are this kind of third type/category of conflict, such as the war on terror, that falls nowhere within the humanitarian law and must be covered by new law. This is exactly the perverse and the adverse effect of a criminal interpretation of the Geneva Convention and protocols.

I would even add something else. It is through international criminal jurisprudence that violations of Common Article 3 [which deals with the principle of humane treatment] have been acknowledged by the judges as a war crime. It was made by the tribunal in former Yugoslavia because, at that time, there was no definition of war crime for non-international armed conflicts. So they said, “Ok fine, violation of Common Article 3 is a war crime.” And then while Common Article 3 was a kind of broad entry point for every single situation that exceeded internal tensions and trouble to enter in and to develop humanitarian assistance, humanitarian initiative, humanitarian special agreement—so contractual application of humanitarian law. And then it’s not so surprising to see that during the war on terror, the US declared that Common Article 3 was not applicable—which is really a fundamental principle.

My guess is that they knew that this Common Article 3 was carrying some kind of criminal content, which was completely new. And that, in fact, led to a number of countries saying, “It’s not even a conflict. We are under the threshold of application of Common Article 3.”

So this is just to show that there is a real tension between criminal interpretation and humanitarian interpretation that must remain always very, very broad to make sure it encompasses every situation that has not been envisaged before.

Right, and in the same vein, still in the introduction of your book, you write somewhere, and I quote, “relief actors cannot play the role of judges or human rights activists as international criminal law would like them to” as, indeed, it might impact their ability to negotiate access and to safeguard humanitarian space. Yet a number of humanitarian organizations, including yours, MSF, engage in public advocacy, as well, in denouncing violations of humanitarian law. So how do you suggest to work around this tension between, indeed, criminal law—the need for justice—and the need for humanitarian action and concrete application of humanitarian law? 

We ask to be granted and we’ve asked for exemption to the International Criminal Court to make sure that we are not perceived as acting for the prosecution of an individual. Because when you are present in the field and you witness a situation which is obviously a violation of humanitarian law, denouncing this situation is quite different than making a case against a given individual with whom you have to negotiate access. So, saying that there are crimes is quite different from saying I have proof against Mr. X, Y, or Z.

And in terms of security and ability to be present in the field, we must be sure that when we discuss with someone, we are not in fact building a case against this person, and that we will not be held to witness and to give our information to the prosecution office at the ICC. Otherwise, we will have no contact with people. Because the very fact of showing that you are in control for a leader of an armed group, if he is in control, if he is able to authorize MSF to do something, means that he is in control. And this has very important criminal consequences.

We had this case in Liberia, with [Charles] Taylor. In fact, he was able to act to help MSF get the release of a hostage. And then we were summoned by the court to show that because he was able to get our hostage release, he was effectively in control of a criminal group. So this is a very concrete example.

Again, another example is that when we are in Central African Republic today receiving in a Hôpital Communautaire [Community Hospital] during the fighting hundreds of wounded every day, we are in fact able, I would say, to show that there has been people targeted: some were civilians, some may have been combatants. But we must refrain the office of the prosecutor to come in the hospital, look at the medical files, to make his case about the existence of war crimes or others—because there are other ways to prove that there has been wounded, to prove that there has been deliberate targeting of civilians. There are other ways.

If the hospital is used to build criminal cases, it means that we will not be allowed to operate in the middle of conflicts. We had exactly the same case in Abobo in the Ivory Coast, and we are fighting with the office of the prosecutor because, again, they wanted to have the medical files.

The office of the prosecutor of the International Criminal Court.

Exactly. But what is of interest for the office of the prosecutor of the International Criminal Court may also be of interest for the office of prosecutor even of military prosecutor of another case. In DRC [Democratic Republic of the Congo], where there were the cases of massive rape of women allegedly by a member of the national army, and [because of] the pressure of the fight against impunity, a military prosecutor required access to the medical file of the medical post where those women were treated. And we resisted, MSF. We resisted very strongly, saying that if such things are allowed—violation of medical secrecy, seizure of medical files against the will of the victims, of the patient—then there will be no more access to medical care. Maybe there will be some prosecution for one case, but the final outcome for it will be that the women will not be able to access medical care after rape.

So we have to be very cautious with all those very good intentions that put pressure on the weakest points, which are the victims and the humanitarian workers. If we want to make justice, if we want prosecution, and to end up with real indictments and effective condemnation, and not, you know, “We have to release you because, in fact, we had no proof, we were not able to prove your culpability,” then the United Nations system and the ICC system must really build their strengths not using proof from the weakest elements of the system, which are the victims and the humanitarian organizations.

Well, Françoise, thank you very much for being with us today. 

Thank you very much.