How to enhance the protection of civilians in armed conflicts?

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(Introductory remarks)

• Civilian suffering in armed conflicts is not a new phenomenon. Throughout history, civilians have been targeted by belligerents, who often have made no distinction between combatants and civilians when fighting their enemy. Massacres, rape, torture, starvation, enslavement, forced conscription and displacement have all been too common features of war at different times and in different places. Sometimes civilian suffering has been an unintended result of the fighting, at other times it has been inflicted as a deliberate military strategy.
  
  
• On the other hand: Almost as long as man has been engaged in armed hostilities, we have also seen efforts to regulate the behavior of parties to conflicts, and to protect those not taking part in it. Today, there is broad agreement that international humanitarian law is and remains a universal, adequate and suitable framework for regulating the conduct of parties to armed conflict. And there is also broad agreement that if its rules on the protection of civilians were only implemented in faithful manner by all, most of the humanitarian challenges we face during situations of armed conflicts would simply not exist.
  
  
• Still, there is unfortunately no doubt that we face daunting challenges. Civilians are affected in a myriad of ways by armed conflict, whether as the direct victims of death, injury, rape and forcible displacement or as indirect victims through conflict-induced increases in disease, hunger and malnutrition. Modern conflicts are also often fought in urban areas and increasingly, civilians are caught in the midst of hostilities.
  
  
• Civilians still represent the vast majority of victims in armed conflicts, and both the humanitarian problems, as well as the grave and long-term socio-economic consequences caused often continue to affect them long after a conflict itself has ended. The impact and experience of war will not be the same for all civilians, but can vary enormously among different groups, for example depending on whether you are a man or a woman, young or old, or living in an urban or a rural area.
  
  
• How are we to protect civilians in armed conflict? In the following, I will touch upon some of the IHL challenges that need to be addressed in the time to come, in order to improve the protection of civilians affected by armed conflicts. (The list is of course not in any way meant to be exhaustive.)

(Challenges)

• First of all, there is a strong need to work for increased respect for international humanitarian law. In many armed conflicts, the parties claim to operate in accordance with IHL, while at the same time we observe high numbers of civilian casualties and widespread destruction of civilian objects and infrastructure in the areas of military operations. The Israeli “Operation Cast Lead” in Gaza is only one example in this regard.
  
  
• In other cases, the parties conduct military operations in what seems to be deliberate and obvious disregard for fundamental rules of IHL. This is especially true for many non-state armed groups, but there are examples of states having operated in this manner as well. Such lack of respect for the rules may be the result of conscious policy decisions, or due to a lack of understanding of IHL or even lack of capacity to enforce it.
  
  There is a need to explore the different reasons for such conduct as well as possible incentives to improve these parties’ knowledge and respect for IHL, particularly with regard to the protection of civilians. There is also a need to continue exploring ways of ensuring that those responsible for violations of IHL are held accountable, and that serious violations of IHL continue to carry a strong stigma. 
  
  
• Second, there is a need to thoroughly examine whether the way existing IHL is implemented by us all - given the way modern armed conflicts are fought – is good enough to provide adequate protection of civilians. In these discussions, focus must be on the consequences felt on the ground, and on how IHL should be interpreted and implemented in order to provide effective protection for the civilians affected by armed conflict.
  
  
• Today’s armed conflicts often take place in densely populated areas, with extensive civilian losses and damage to civilian buildings and infrastructure as a result. This means there is an urgent need to consider whether the interpretation of the basic IHL rules of distinction between military targets and civilians and proportionality need to be further strengthened.
  
  
• One of the central questions to be addressed must be how to apply the rule of distinction in today’s military operations. Experience from a number of recent conflicts begs the question of how the principle of distinction is implemented in practice, in particular when conducting warfare within densely populated areas. Which types of means and methods of warfare are being used? Can these means and methods actually be used in a way to properly distinguish between military targets and civilians and civilian objects? And if so, are they in fact being used in a way to distinguish between military targets and civilians and civilian objects?
  
  
• Imprecise targeting in connection with the use of remote-controlled technologies such as drones is of course an issue of concern in this regard, as is the widespread use of explosive weapons in densely populated areas. And we still witness too wide an interpretation of what constitutes legitimate military targets.
  
  
• Another central issue to discuss would be how to apply the rule of proportionality in modern warfare. IHL prescribes an assessment of proportionality if an armed attack on a legitimate target may lead to the incidental loss of civilian life, injury to civilians and/or damage to civilian objects. If such consequences are expected to be excessive in relation to the military advantage anticipated, the attack is prohibited.
  
  This rule implies that some degree of incidental civilian damage may be accepted.  However, experience from the field gives reason to question whether the considerations of incidental damage by the military in doing this assessment are too narrow, short-term, based on subjective criteria or not taking into account the full range of often widespread and long-term humanitarian consequences.
  
  
• We have, with valuable contributions from the ICRC (as well as other States, the UN and civil society), initiated a series of regional conferences in order to facilitate such a discussion, and to seek agreement on recommendations and other possible actions to improve the protection of civilians in armed conflicts.
  
  The key focus of the initiative, which we call “Reclaiming the protection of civilians under IHL”, will be on ways to strengthen the implementation of the existing rules of IHL, and improve respect and compliance by both State and non-state parties to conflicts. The first of these regional conferences was held in Indonesia in November this year.
   
• Third, while we see no need to re-negotiate IHL, we agree with the ICRC that there is a continuous need to assess whether there is a need for further clarification and development of the general rules, in order to keep up with developments in modern warfare and ensure an effective protection for the civilians affected by it.
  
  
• The prohibitions on the use of anti-personnel mines the 1997 Mine Ban Convention and on cluster munitions in the 2008 Convention on Cluster Munitions should both be seen in this light. Both weapon types had already long been seen by many as contrary to both the rule of distinction and the rule of proportionality, due to their indiscriminate effects and vast number of civilian casualties caused by their use. However, the lack of broad international agreement, while the magnitude of the humanitarian problem on the ground was only too evident, made it necessary to negotiate specific conventions to address these problems.
  
  
• Negotiating the Convention on Cluster Munitions only possible through the hard work and concerted efforts of States, the UN, the ICRC and civil society, and I was very happy to note the entry into force of the Convention on 1 August this year. I was also happy to see the success of the first Meeting of States Parties to the Convention in Laos, the country most severely affected by the use of cluster munitions in the world. Since 1964, more than 50.000 people have been killed or maimed in Laos due to accidents caused by unexploded. Even today, more than 300 persons are killed or maimed every year. Approximately 40% of these being children, a fact of which we were brutally reminded during my own visit during the Meeting of States Parties, when a 10 year old Laotian girl was killed and her sister injured.
  
  
• I would also like to commend the ICRC for its extensive work in elaborating the “ICRC study on the Current State of International Humanitarian Law” as presented by the ICRC’s President Kellenberger in September this year, where he highlighted certain areas which we all agree is of great concern and which need to be urgently addressed. I would like to emphasize a couple of the areas mentioned especially relevant for the protection of civilians:
  
  
• As also pointed out in the latest Report of the UN Secretary-General on the protection of civilians in armed conflict, internal displacement of civilians remains a defining characteristic of conflict, with civilians fleeing violence or being forced to leave their homes, often in violation of international law. The legal protection of internally displaced persons (IDPs), including forcibly displaced persons, is an issue we believe needs an increased focus in the time to come. Although some steps have been made, including the adoption in 1998 of the “Guiding Principles on Internal Displacement”, recent experience from conflicts around the world clearly shows the need to look at ways to address these problems. Recent experience from armed conflicts, such as the conflict in Sri Lanka, also shows the need to work for an increased protection of civilians held interned during internal armed conflicts.
   
• We also believe there is now a need for an increased focus on the protection of the natural environment during armed conflicts. First of all because protection of the natural environment is an important value in itself, and second of all because the serious harm inflicted on the environment during armed conflict further increases the vulnerability of the civilian population in the area, depending on it for livelihood and well-being.
  
  A prohibition against attacks on the natural environment unless it is a military objective, and against attacks that may cause disproportionate incidental damage to the environment, must already be seen as customary law (and was also recognized as such as it was included in the list of war crimes in the ICC Statutes). However, there is clearly still a need for further clarification and strengthening of the regulation in this area.
  
  

(Concluding remarks)

• In concluding, I would like to warmly commend the ICRC for invaluable and extensive work in the area of IHL. We appreciate the close cooperation with the ICRC on ways and means to provide enhanced protection of civilians. I look forward to the discussion.