According to the opening speaker, the Commission’s interest in this theme had been driven by four main concerns: the development and proliferation of lethal weapons of mass destruction; an alarming rise in state expenditure on their armed forces and weapons systems; the proliferation of armed conflicts and proxy wars at national and regional levels; and the spread of communal conflicts in which people were targeted on the basis of their ethnic, religious or other identity.
In this context, ICIHI had been eager to identify ways in which International Humanitarian Law (IHL) might be revitalized and given greater authority, possibly by creating a clear and concise restatement of the fundamental rules of war. The Commission was concerned that the states and non-state actors involved in armed conflicts did not always understand what they could and could not do under IHL. In addition to such a ‘code of conduct’, the Commission felt that the use of ‘good offices’ and commissions of inquiry could be used more effectively to influence the behaviour of parties to armed conflicts, as could public opinion and media exposure.
The first segment of the panel discussion focused on Afghanistan in the 1990s, with particular reference to the UN’s efforts to negotiate a ‘humanitarian consensus’ with all the parties to the conflict, including the different political/military factions within the country as well as external powers such as Iran, Pakistan, the Soviet Union and the USA. By acting as an ‘honest broker’ between these different actors, the UN was able to work across international borders and across the frontlines of the armed conflict within Afghanistan. At the same time, the UN succeeded in establishing the first humanitarian mine action programme, an initiative that provided the Afghan people with a tangible demonstration of the world body’s determination to mitigate the human consequences of the war.
Turning to the present day, the panel examined the situation in Syria, focusing particularly on the way that sieges, starvation and the targeting of medical facilities have been used as weapons of war by the regime in Damascus. At the same time, international humanitarian assistance has often been funneled through state institutions and shared with militia groups that are fighting alongside government forces. According to one speaker, “humanitarian funding provided by the international community actually ends up fuelling the war, rather than making the situation better for the Syrian people.”
Non-state actors engaged in the Syrian conflict are also instrumentalizing aid. Humanitarian assistance has been excluded from some of the areas freed from ISIS, while a similar situation has arisen in liberated areas of Iraq such as Ramadi and Mosul. In those locations, militia groups have set up so-called ‘screening camps’ which have been used not only to identify ISIS members but also to settle old political scores and to prevent humanitarian agencies from gaining access to the detainees.
One speaker suggested that when working in difficult and dangerous environments such as Syria and Iraq, there was little to be gained by invoking the notion of the ‘humanitarian imperative.’ On one hand, the speaker argued, the notion “does not exist in IHL or any other body of law.” On the other hand, it “lulls us into a false sense of security” by suggesting that the enormous military, political and other constraints to effective humanitarian action can simply be wished away. In fact, “we need to fight and negotiate for humanitarian objectives, every step of the way.”
A member of the audience pointed out that humanitarian agencies are increasingly invited and induced to enter into deals with the parties to armed conflicts. Assistance can be provided to one group of people, for example, only on condition that a similar amount of assistance is provided to another group of people, irrespective of their real and relative needs. Similarly, parties to an armed conflict might allow the evacuation of people from one location, but only on condition that the same number of people are allowed to leave another location.
“We are negotiating things that we should never be negotiating,” the speaker observed, pointing out that such deals represented “a huge threat to the fundamental principles of impartiality and neutrality and a serious reduction in the humanitarian space in which we work.” Responding to this observation, another speaker suggested that we are now living in “pre-Solferino times,” referring to the era prior to the establishment of the ICRC and its codification of the laws of war.
The same speaker went on to say that it has proven very difficult for the UN and for aid organizations to engage and negotiate with actors who share none of the same values and who denounce the whole humanitarian enterprise. In addition, the speaker suggested, the UN lacked the quality of leadership that it once enjoyed and had become increasingly institutionalized and bureaucratized. “On the ground, the agency of individual aid workers is much weaker than it used to be, partly because new technology has allowed them to be in constant communication with their superiors, and partly because they cannot act until all sorts of security arrangements are in place.” The humanitarian enterprise has become much larger and now has the capacity to save more lives than was the case in the past. “But it has lost some of its ‘can do’ attitude.”
The absence of a humanitarian consensus has made it increasingly difficult for international aid agencies to operate in traditional ways. Two years ago, for example, around 70 per cent of all medicines going to northern Syria were provided by one such organization. But it was obliged close down all its facilities in the region when a number of its doctors were kidnapped by ISIS. “The organization was built on the principle of being present on the ground. But now they had to leave the country and establish an entirely new, cross-border operational model, based on the presence of local actors at the point of delivery.” This, it was explained, created huge managerial dilemmas for the organization.
The conference was also informed that the parties to armed conflicts are increasingly ready to target medical facilities, thereby breaching a fundamental principle of IHL. In a number of countries, such attacks had taken place even when belligerents had been provided with the coordinates of such facilities so as to avoid any collateral damage. “Humanity is being sidelined by the pursuit of political and military goals.”
Agreeing with this observation, a member of the audience pointed out that gaining respect for IHL is fundamentally not a legal or technical matter, but is rooted in morality, ethics and education. “In those respects, equal attention must be given to influencing the behaviour of decision-makers in both developing countries and the industrialized world.
While agreeing with the need for such an approach, one speaker suggested that in the short-term at least, violations of IHL would continue to take place. As a result, affected populations would look for safety and sanctuary beyond the borders of their own country. In this respect, the speaker suggested, the issues of atrocity and asylum represent two sides of the same coin.
Elaborating on this point, another speaker drew attention to the fact that the world’s most prosperous countries, especially but not exclusively in Europe, are investing enormous sums of money in the task of keeping refugees out of the continent. There was a need to mobilize citizens against this trend. And there was evidence to suggest that civil society, locally-based initiatives and transnational social movements might be more successful in this respect than large, formal and highly institutionalized humanitarian organizations.
Another speaker confirmed this analysis, pointing to the popular protests that took place across the globe against the war in Viet Nam. “There was a sense then that the situation could be changed. We don’t have that now and we have to find a way of regenerating it, both in relation to the prevention of atrocities and the defense of asylum.”
Reflecting on this challenge, another speaker suggested that in the context of the Middle East, “conflict seem to have become routinized and normalized. People simply consider that violence is a natural phenomenon in that area of the world.” Particularly tragic or poignant incidents might create a temporary media storm, but they do not lead to changes in policy.
Responding to these observations, one speaker stated that it would be misleading to suggest that IHL is routinely and universally violated. In some contexts it is complied with in a rather systematic manner, although such situations rarely attract the attention of the media. It would be useful to identify those armed conflicts in which compliance with IHL has been relatively high, with a view to gaining a better understanding of what allows that outcome to be attained and whether those circumstances can be replicated elsewhere.
The speaker agreed that education and awareness raising were of vital importance with regard to the promotion of IHL, and in that respect underlined the need for a wide ranging approach, engaging with primary and secondary schools, colleges and universities, civil society and faith-based organizations, as well as the media.
In terms of advocating for change, timing is often crucial, the chances of success being much greater if the right topic is promoted at the right moment. In 2006, for example, the issue of cluster munitions came to the fore as a result of their use in southern Lebanon. After an intensive lobbying effort, the Convention on Cluster Munitions was established in 2008 and became binding international law two years later.
In a concluding contribution, the chair of the panel identified the key ‘takeaways’ to be drawn from the preceding discussion. First, the current indifference and resignation with respect to violations of IHL must be challenged, and replaced with a sense of outrage with respect to the treatment of civilians who are affected and displaced by armed conflict.
Second, while effective leadership is vital, that sense of outrage will have limited impact if it is confined to humanitarian and human rights professionals. Popular mobilization is essential. Finally, the language of crisis can be counterproductive if it is overused and generates a sense of helplessness. In seeking to promote respect for IHL and international refugee law, it is essential to promote and build upon positive examples.