Book Chapter
Reference
Law as a Tool to Improve the Protection of Civilians
GAGGIOLI GASTEYGER, Gloria
Abstract
Monitoring and investigating is a prerequisite to stop human rights (HR) violations and to prevent new ones. It is a particularly difficult and dangerous task; even more when violations are committed in the middle of protracted armed conflicts (AC). In these situations, HR and International Humanitarian Law (IHL) violations are common and States are not always able and/or willing to put an end to them and to punish their perpetrators. The role of the international community and the civil society is therefore crucial. This discussion paper will touch upon ways, especially legal ones, to improve this fundamental task of monitoring/investigating HR in AC, in general and in particular in Africa.
GAGGIOLI GASTEYGER, Gloria. Law as a Tool to Improve the Protection of Civilians. In:
Improving the Protection of Civilians in Situations of Armed Conflicts. Cambridge : Harvard Kennedy School – Carr Centre for Human Rights Policy, 2011. p. 26-30
Available at:
http://archive-ouverte.unige.ch/unige:145433
Disclaimer: layout of this document may differ from the published version.
LAW AS A TOOL TO IMPROVE THE PROTECTION OF CIVILIANS IN ARMED CONFLICT
Gloria Gaggioli PhD in International Law Researcher, University of Geneva Monitoring and investigating is a prerequisite to stop human rights (HR) violations and to prevent new ones. It is a particularly difficult and dangerous task; even more when violations are committed in the middle of protracted armed conflicts (AC). In these situations, HR and International Humanitarian Law (IHL) violations are common and States are not always able and/or willing to put an end to them and to punish their perpetrators. The role of the international community and the civil society is therefore crucial. This discussion paper will touch upon ways, especially legal ones, to improve this fundamental task of monitoring/investigating HR in AC, in general and in particular in Africa.
I. Main HR and IHL violations affecting civilians in AC
Current conflicts tend to demonstrate that civilians are not only incidentally affected, but are often the intended targets of attacks by States and non-state actors. This is especially so in internal conflicts based on ethnicity, a struggle for power and/or resources, like those plaguing Africa. Civilians are the victims of direct or indiscriminate armed attacks, extrajudicial killings and forced displacements. Some categories of civilians – like women, children and members of civil society – are particularly vulnerable. Women and children are the victims of sexual violence. The use of child soldiers is more and more frequent. Political opponents, journalists, HR defenders and so-called terrorists are persecuted.
In addition to these targeted HR/IHL violations, the overall consequences of AC will often affect civilians for a long time. These include conflict-related deaths from hunger or disease, extremely poor standards of living for refugees or international displaced persons and traffic in small arms leading to violence and lack of security.
The following three African conflicts sadly exemplify this listing of HR/IHL violations. The information has been collected from the very useful Rule of Law in Armed Conflicts Project of the Geneva Academy of International Humanitarian Law and Human Rights, which summarizes the factual and legal situation of all countries in the world affected by AC.
In the Democratic Republic of Congo, mortality studies estimate that up to 1,200 people die each day from conflict-related causes, mostly disease and malnutrition, but also ongoing violence. There are over 1 million internally displaced persons in the country’s four eastern regions, including about 800,000 in North Kivu and over 300,000 in South Kivu. In 2007 alone, more than 500,000 persons were reported as having been displaced. In October 2008, thousands
of civilians were forced to flee because of the advance of a non-state armed group led by Laurent Nkunda. The army has been implicated in looting, rapes and killings in and around the capital Goma. In early November 2008, several civilians were killed by the rebel forces of General Nkunda as well as by pro-government militias.
In Sudan, pro-government Arab militias are accused of carrying out a campaign of ethnic cleansing against non-Arab groups since 2003. According to the Report of the High-Level Mission on the situation of HR in Darfur pursuant to HR Council decision S-4/101, dated 9 March 2007, many humanitarian actors have been targeted. Killing of civilians was widespread, including in large-scale attacks. Torture, rape and sexual violence were common and systematic.
Arbitrary arrest and detention were frequent, as was repression of political dissent, and arbitrary restrictions on political freedoms. In April 2008, the UN Under-Secretary-General for Humanitarian Affairs said that approximately 300,000 people had died since 2003. The causes included deaths from disease and malnutrition as well as direct combat. More than 2.7 million people have been displaced by the fighting. Around 260,000 refugees have fled to neighboring Chad.
In Sierra Leone, the internal conflict that lasted for over a decade, and ended in 2002, claimed over 50,000 lives, and caused the displacement of around one-third of the country’s population.
The conflict is unfortunately known for the extent of rape and mutilation of those who refused to join rebel forces and commit atrocities. Child combatants have been widely used to commit atrocities.
II. The need for expertise in both HR and IHL and for information-sharing
A team engaged in monitoring abuses in AC should be constituted by personnel coming from different backgrounds. Lawyers, doctors, historians, ballistic experts and others may be needed.
Lawyers need to be experts in both HR and IHL. Indeed, in AC, IHL may constitute the lex specialis and it is importantly complemented by HRL.
Too often, lawyers are specialized only in HRL or IHL. It is true that massive atrocities very often constitute both a violation of IHL and HRL. However, some violations may resort to only one of these bodies of law. For instance, the fact of using an ambulance marked with a red cross to carry weapons and active combatants is an IHL violation, even if it is not as such a HR violation. On the other hand, the fact that a government does not carry out an investigation each time civilians have been killed constitutes a HR violation even if this obligation is not so far- reaching in IHL.
It is also important to recall that monitoring/investigating in AC will not be convincing if some important information is missing. It is often reported that HR/IHL violations have been committed because, for example, of the bombing of a civilian establishment (church, school, hospital, radio, etc.). This information only is not sufficient. To be convincing, the reporters
should investigate whether these civilian establishments were used to make an effective contribution to military action or not. In the same vein, a bombing provoking many casualties among civilians may not as such constitute an IHL violation if the principles of proportionality and precaution were respected.
UN supervisory bodies are trying more and more to include IHL experts. The ICRC is also taking HRL increasingly into account. These positive evolutions should be intensified and better institutionalized. The civil society (media, local NGOs) should receive training in both HRL and IHL as they play a vital role in the collection of information necessary for monitoring/
investigating IHL/HR violations.
Finally, it is important to create a network among the HR and humanitarian actors. Competition among them is not always positive. They should collaborate and share information as much as possible. Of course the mandate of each actor should be respected. It is also essential to create and keep contacts with the armed forces of the States and non-governmental militias. Very often, they will be the only one retaining the researched information.
III. The lack of political will as the main issue and the corresponding need to bring into play binding mechanisms to monitor and investigate HR/IHL violations in AC
Effectively monitoring and investigating HR/IHL violations is almost impossible without the collaboration of warring parties. In our view, the main issue is that, in addition to not always fulfilling their obligation to prevent and punish HR/IHL violations, States at war are also reluctant to collaborate constructively with HR institutions or civil society.
This reluctance, or even unwillingness, of States to have external actors monitoring/investigating HR/IHL violations is also evidenced in international treaties. One of the main drawbacks of IHL is precisely the lack of implementation bodies. The ICRC is almost the only international body monitoring IHL (the international criminal courts and tribunals acting only ex post facto to punish international criminals). Of course, other implementation mechanisms have been created by the Geneva Conventions and Additional Protocol I, but only for international AC. Moreover, they have practically never been used. Protecting Powers have not been appointed by belligerents since 1945. The “enquiry procedure” remained dead letter. The same is true for the International Humanitarian Fact-Finding Commission (IHFFC). This body, consisting of fifteen highly experienced experts, is competent to enquire into any facts alleged to be a grave breach or any other serious violation of humanitarian treaties. It has been set up but never used, despite the fact that it has only the power to make recommendations and no right to report its findings publicly without the consent of the parties in the conflict.
This IHFFC could be one very efficient solution to improve monitoring/investigating IHL (and why not also HR) violations during AC. The international community should insist in order to
convince States to accept, already in peacetime, the ipso facto competence of this body. Warring parties should also be encouraged to call into play this body and collaborate with it.
In HR treaties, the situation is different. They do create many implementation bodies with the mandate to promote and protect HR. They are not “investigating bodies” as such but some of them can carry out investigations. The African Commission on Human and People’s Rights, for example, can resort to any appropriate method of investigation. However, apart from judicial bodies – like the European, American and African Courts – these bodies have no binding competence. In any case, even if these HR courts and commissions do have a very important role in protecting HR, they cannot replace bodies working permanently in the field with the mandate to monitor and investigate HR violations. The United Nations (UN) has partly filled this gap with the Charter-based bodies (HR Council and formerly the UN HR Commission and Sub- Commission), which have set up special procedures allowing Working Groups and Special Rapporteurs to monitor and investigate HR violations. However, their ability to do on-site investigation depends on the acceptance of States. One solution could be to convince States to accept in advance the establishment of binding HR monitoring/investigating bodies.
The UN Security Council (SC) can also send monitoring/investigating bodies on the ground.
Here also, this will depend on the acceptance by the State; unless the SC decides to act under Chapter VII. However, imposition is not an ideal solution regarding monitoring/investigating because the warring parties retain crucial information. The threat of imposition can nevertheless be used to convince States to collaborate spontaneously with HR/IHL monitoring bodies.
Last but not least, the civil society made of international and local NGOs plays an extremely important role in monitoring/investigating IHL and HR violations. They often know better the situation on the ground as well as the local actors. Despite the fact that many African countries have moved towards democratization, many others still do not have an active civil society, independent media and national HR institutions. This is especially so for countries torn by AC. It is therefore imperative to keep on helping African countries to build a solid civil society.
IV. The need to use different strategies to collect and report information and to persuade policymakers to respond to such violations
Ideally, information should be collected with the collaboration of governments and non-state actors involved in the conflict. It should be reported in priority to the authorities of the parties to the conflict, which are responsible for stopping the violations. It may not be necessary to report the information publicly; unless the belligerents fail or refuse to respond to such violations.
When collaboration with belligerents is impossible or insufficient, publicity seems to be the only solution. Regional organizations, like the African Union, should be informed so that they can convince – by peaceful means – the warring parties to stop exactions.
UN organs, like the HR Council, must be informed. The international community can and should exert a considerable pressure on belligerents as it has the duty to “ensure respect” for IHL and HR. The SC considers that serious HR/IHL violations can be a threat to the peace - allowing it to take binding decisions including the use of force under Chapter VII of the UN Charter. States and the SC have recognized that they have a “responsibility to protect” populations from genocide, ethnic cleansing, war crimes and crimes against humanity.
Concluding proposals
1) Train actors involved in monitoring/investigating violations in AC in both HR and IHL.
2) Create a network and spirit of collaboration among actors involved in monitoring/
investigating violations.
3) Find a way to “resuscitate” the IHFFC and/or create a HR monitoring/investigating body with binding powers.
4) Better involve organizations and the UN, especially the HR Council and the SC.
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