On Oct. 23, Sahr Muhammedally addressed the 28th Informal Meeting of Legal Advisors at the United Nations Headquarters in New York on challenges to the respect of International Humanitarian Law. Here remarks are below.
It is an honor to be here today. I’d like to thank Sweden for inviting me to speak to UN member states’ legal advisors on the challenges regarding the respect of international humanitarian law (IHL).
My organization, Center for Civilians in Conflict, or “CIVIC” as we’re often known, works to improve civilian protection around the world. We do this by determining challenges to that protection and working with international organizations, governments, and armed actors to address protection gaps, and develop policies, tools, and trainings to prevent and appropriately respond to civilian harm. My remarks today are based on our work speaking with civilians and armed actors in Afghanistan, Iraq, Syria, and Yemen, as well as CAR, DRC, Mali, Nigeria, South Sudan, and Ukraine.
I will briefly discuss several key civilian protection challenges identified by our organization: the lack of adherence to IHL, the lack of capabilities to mitigate civilian harm, challenges in urban warfare, and engagement with non-state armed groups.
And then I’ll talk about the way forward.
Lack of adherence to IHL
Most current armed conflicts are asymmetric and often fought amongst civilian populations. The enormous technological and military superiority of some states involved in conflict has led armed opposition groups to move underground, intermingling in the civilian population, and engaging in guerrilla warfare to avoid identification and detection. As a result, most battles occur not in open areas, but in towns and cities. This obviously exposes civilians to increased risk of harm.
The attacks that have been documented are often deliberate and are designed to deprive people of essential services as a strategy or punishment by some belligerents.
Some armed groups, unable to prevail in a direct confrontation with state forces, resort to methods of warfare prohibited by IHL such as wearing civilian clothes, conducting indiscriminate attacks, or deliberately targeting civilians, humanitarian, or medical personnel. State armed forces face challenges in distinguishing fighters from the civilian population.
We have also seen concepts of non-reciprocity under strain, and regrettably, we have seen a willingness of both state armed forces and non-state armed groups to disregard basic rules of distinction, proportionality, and even humanity.
We also see the challenge of protecting civilians in situations where a state or other armed actor may be deliberately targeting civilians or hindering the work of the UN and humanitarian actors (e.g., in South Sudan and Syria). Attacks on hospitals and medical providers over the last few years need urgent attention. The attacks that have been documented are often deliberate and are designed to deprive people of essential services as a strategy or punishment by some belligerents.
Challenges in Urban Warfare
Another trend over the past few years is that fighting in densely populated areas poses significant challenges to forces trying to adhere to the rules that govern warfare. Even assuming that international humanitarian law is respected, urban warfare inevitably leads to human suffering. Planning for any military operation is complex, but the presence of thousands of civilians in an urban environment introduces additional considerations—in particular, the need to adhere to IHL’s principle of proportionality and undertaking precautionary measures.
We have seen an increase of improvised explosive devices by non-state armed groups resulting in high levels of civilian harm. Both state and non-state armed groups are also using munitions with wide area affect—such as artillery, rockets or large bombs. These weapons result not only in death and injuries, but impact critical infrastructure civilians rely on. I have spent a lot of time in Iraq and visited areas retaken from ISIS, including in Mosul, and spoken to civilians and security actors on protection challenges. One key takeaway has been the widespread destruction of towns and cities with civilians left wondering whether they are being punished for the crimes of ISIS.
Non-state armed groups
Another challenge to adhering to IHL is getting non-state armed actors to respect basic norms on the conduct of hostilities. Engagement with non-state actors is key to reducing violence against civilians. Many of these groups see support from the local population as conferring legitimacy and continued operation and thus may be open to improving their behavior. Engagement by ICRC and organizations such as Geneva Call has yielded benefits.
But no doubt, challenges exist. For example, some national legislations have criminalized engagement as a form of “support” to non-state armed groups when states label armed opposition groups as “terrorists.”
Engagement with non-state armed groups can also be difficult when there is a lack of professionalization, command and control, and oversight/disciplinary processes. Thus, engagement strategies must be creative and flexible to allow such groups to have ownership in how they are improving their behavior. For example, we have seen that discussing core IHL protection principles through a religious and cultural lens can work in some cases. So too can empowering community leaders to better understand protection.
The Way Forward
Despite the challenges in current conflicts, armed actors can be successful in respecting IHL. We see this in our work with armed actors and encourage planning for the protection of civilians before, during, and after conflict.
Before armed conflict, planning is key. This means developing military manuals, trainings, policies, and operational planning to respect the dignity and life of persons affected by conflict. It also means ensuring all efforts are made to minimize incidental harm to civilians. Pre-conflict planning for massive displacement and coordination between security actors and humanitarians to reduce the suffering of those who have lost everything must be prioritized.
During armed conflict, it is essential that armed actors continuously assess the impact of their operations on civilians to identify and investigate possible rules violations. Also, armed actors should identify ways to reduce incidental harm by tracking and analyzing causes of civilian harm and implement new tactical measures or additional trainings. For example, ISAF, AMISOM used lessons learned to restrict use of indirect fire weapons in populated areas, improve post-harm assessments of incidents, and created tracking cells. Armed actors need to be reminded that care for protection under IHL runs throughout operations and needs creative thinking and solutions to minimize incidental harm.
Civilian harm is an inevitable part of armed conflict. Therefore, a force must not simply say “We do not harm civilians,” or assume the inevitability of civilian harm and fail to plan for it. A force must prioritize protection in its strategy and plan for what it will do after incidents of civilian harm. This should take the form of a robust approach both in terms of transparent investigations, acknowledgement, the making of amends and, in case of violations, accountability measures as so eloquently discussed by my colleagues.
Despite the challenges in current conflicts, armed actors can be successful in respecting IHL.
The UN Secretary-General—in his May Protection of Civilians report—specifically urged member states to “Enhance parties’ compliance with international law … to develop and implement policies to avoid civilian harm in military operations. These should include pre-conflict planning, guidance on the use of particular weapons and tactics, tracking and analyzing the impact of operations on civilians and making amends for civilian harm. Non-State armed groups should also be encouraged to implement practical measures to avoid civilian harm.” To this end, we urge all states to adopt and implement protection and harm mitigation policies, tools, and practices as a key focus of their armed forces.
Across the globe, the constant we see is human suffering. While losses and horrors that civilians are facing cannot be completely prevented, we do see in our work with some armed actors a willingness to improve behavior and reduce violence, to learn how to operate in complex urban environments where most of today’s battles are fought, to handle large population displacement and coordinate with humanitarian actors, and taking precautions when engaging the opposing side that blatantly attacks civilians. These measures need to be strengthened and shared. And we need to continue all of our collective engagement to show that respect for IHL and prioritizing civilian protection, can be achieved.