Rule of Law/Protection of Civilians/International Humanitarian Law
Expected Council Action
In August, Polish Foreign Minister Jacek Czaputowicz is expected to preside over a briefing on “the promotion and strengthening of the rule of law in the maintenance of international peace and security: international humanitarian law”. The anticipated briefers are ICRC President Peter Maurer, the Under-Secretary-General for Legal Affairs, UN Legal Counsel Miguel de Serpa Soares, and Dr. Annyssa Bellal, senior research fellow and strategic adviser on international humanitarian law at the Geneva Academy of International Humanitarian Law and Human Rights.
Background and Recent Developments
The briefing organised by Poland is to mark the 70th anniversary of the adoption of the four Geneva Conventions, which regulate the conduct of armed conflict and are considered the cornerstone of international humanitarian law. Adopted on 12 August 1949 and universally ratified, the conventions established protections for vulnerable groups in armed conflict—the wounded and sick on land and at sea, prisoners of war, and civilians, including civilians living under occupation.
This year also marks the 20th anniversary of the inclusion of protection of civilians as an item on the Council’s agenda and the adoption of resolution 1265 of 17 September 1999, the Council’s first resolution on the protection of civilians, which expressed the Council’s deep concern at the erosion of respect for international humanitarian law during armed conflict.
The Council has since reiterated many times the importance of adherence to international humanitarian law and the protection of civilians, but the latest Secretary-General’s report of May shows the continued devastating impact of armed conflict and its conduct on civilians around the world. Throughout 2018, the report notes, tens of thousands of civilians were killed, injured or maimed as a result of direct or indiscriminate attacks by parties to conflicts, including in the Central African Republic, Chad, Libya, Niger, Nigeria, Myanmar, Syria and Ukraine. In 2018, the UN recorded the deaths and injuries of more than 22,800 civilians in attacks in six situations: almost 11,000 civilians in Afghanistan, more than 2,600 in Iraq, 1,300 in Mali, 1,500 in Somalia, 3,700 in South Sudan, and 2,700 in Yemen. In 2018 there were also widespread attacks affecting civilian objects that are protected under international humanitarian law, which may include houses, schools, hospitals, markets, camps for refugees and internally displaced persons, places of worship, and critical infrastructure. Conflict had ruinous effects on children throughout 2018 and conflict-related sexual violence persists, often as part of a broader strategy. Other specific groups, such as journalists, medical personnel and humanitarian actors, are also being targeted by warring parties.
The report notes that these figures, combined with information from other sources, show that parties are failing in their efforts to spare the civilian population and civilian objects in the conduct of military operations, as required by international humanitarian law—or are choosing not to protect them. The allegations include serious, credible and documented allegations, and evidence of disproportionate and indiscriminate attacks and of states failing to take all feasible precautions to prevent harming protected people under the conventions. Some states ignore the law while others claim to be upholding it. The assertions of compliance by some parties to conflict are called into question by increasing numbers of civilian casualties, and damage to and destruction of civilian objects resulting from their operations.
Finally, the report notes that enhancing accountability for such violations, both of individuals and parties to conflict, is vital for ensuring adherence to international humanitarian law. Yet impunity is rampant as the alleged perpetrators of serious crimes are not systematically investigated and prosecuted.
The Council discussed the promotion and strengthening of the rule of law, with a focus on implementing international humanitarian law obligations, on 1 April, in a meeting chaired by German Foreign Minister Heiko Maas. Under-Secretary-General for Humanitarian Affairs Mark Lowcock, Maurer, and Harvard Law School Professor of Practice Naz Modirzadeh briefed the Council. An Arria-formula meeting on protecting humanitarian and medical personnel, chaired by French Foreign Minister Jean-Yves Le Drian, was held earlier that day.
Modirzadeh expressed concern that counter-terrorism measures may be interpreted and applied in ways that might undermine humanitarian actors and actions. She noted, for example, that providing impartial medical care to wounded fighters and life-saving goods and services to civilian populations under the de facto control of non-state parties would be characterised by some states as illegitimate and unlawful, using a counterterrorism perspective. She stressed the importance of language contained in resolution 2462 of 28 March on the financing of terrorism which demands that states ensure that their counter-terrorism measures comply with their obligations under international law, including international humanitarian law, international human rights law, and international refugee law. (The resolution also decided that states shall ensure that their domestic laws establish serious criminal offenses for the wilful provision or collection of funds with the intention that the funds should be used, or in the knowledge that they are to be used, for the benefit of terrorist organisations or individual terrorists for any purpose.)
Key Issues and Options
The overarching issue is whether, and how, thematic discussions about the protection of civilians and international humanitarian law can be translated into concrete measures to mitigate the suffering of civilians in armed conflicts around the world. In this sense, it is important for the Council to consider how this meeting, marking the 70th anniversary of the Geneva Conventions, can contribute to their implementation.
A key challenge for the Council is ensuring that compliance with international humanitarian law, and accountability for gross violations of this, as well as other international crimes, feature in its consideration of country-specific issues.
Council and Wider Dynamics
Poland sees the 70th anniversary of the conventions as an opportunity to highlight their contemporary relevance, promote their implementation, and reaffirm the Council’s commitment to ensuring compliance with international humanitarian law more generally without focusing on specific country situations or any subtopic of international humanitarian law.
Being universally ratified, the importance of implementing the Geneva Conventions is a consensual issue in the Council. Furthermore, there is general awareness among Council members of the devastating impact that armed conflict has had on civilians in recent years and the considerable implementation gap. Nevertheless, despite general agreement on the importance of international humanitarian law, divisions among members affect discussions and approaches towards the protection of civilians thematically and in the context of specific conflicts. The P3 and other members tend to stress accountability measures and sanctions as mechanisms for leveraging compliance with international humanitarian law whereas other members, such as China and Russia, tend to be more circumspect about using such enforcement measures in light of their emphasis on state sovereignty. In addition, political differences and alliances with opposing belligerents among Council members, particularly among the P5, have hindered the Council’s ability to play an effective role in protecting civilians in conflicts on the Council’s agenda, especially in Syria and Yemen.
UN DOCUMENTS ON THE RULE OF LAW
|Security Council Resolutions|
|28 March 2019S/RES/2462||This was a resolution on combatting the financing of terrorism.|
|17 September 1999S/RES/1265||This was the Council’s first thematic resolution on protection of civilians in armed conflict, condemning targeting of civilians, calling for respect for international humanitarian, refugee and human rights law and expressing willingness to take measures to ensure compliance and to consider how peacekeeping mandates might better address the negative impact of conflict on civilians.|
|7 May 2019S/2019/373||The Secretary-General’s annual report on protection of civilians, which included a section on “missing persons”.|
|Security Council Meeting Records|
|1 April 2019S/PV.8499||This was a briefing by ICRC President Peter Maurer and Professor of Practice at Harvard Law School Naz Modirzadeh on the promotion and strengthening of the rule of law, with a focus on International humanitarian law.|