The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Introduction

International humanitarian law represents the ultimate reference in situations of crisis and conflict. It is the arbiter that determines individuals’ survival in the face of violence committed by societies. This body of law is argued and defended through action and, thus, is not the property of lawyers or specialists, and must be known and defended by as many people as possible.

International humanitarian law has long been neglected for its paradoxical ambition to regulate armed conflict while lacking necessary international sanctions for its most serious violations, such as war crimes and other crimes against humanity. But it has recently become an essential element of international diplomacy and therefore runs the risk of becoming victim of its own success.

During the last decade, international humanitarian law and humanitarian action have played a key role in almost all the debates relative to the management of international peace and security. Indeed, many military interventions in countries in conflict or crisis have been carried out in the name of humanitarian concerns, of a wide definition of national and international security, or of the “Responsibility to Protect” doctrine. Besides, this humanitarian “imperative” and its related fight against impunity have also stirred the creation of the International Criminal Court (ICC) and the indictment of several heads of States and military leaders before international criminal tribunals.

The rapid development of international criminal law has provoked great enthusiasm within legal circles and among human rights activists. Decisions made by international courts have given legal meaning and substance to humanitarian law principles counterbalancing their recurrent violations by armed actors. But alongside this judicial evolution, provisions of humanitarian law have become the target of a legal battle launched by some States in order to challenge their applicability and release themselves from their obligations in situations of armed conflicts. This challenge has created “legal black holes” where there would be no more certainty that humanitarian law or human rights are either applicable or implemented.

This phenomenon is illustrated by the theoretical and practical abuses of interpretation made in the context of the “global war on terror.” These abuses have weakened the understanding of the very founding principles of humanitarian law, including the definitions of armed conflict and combatants, which have turned into overcomplicated legal matters hardly understandable or applicable to real-life situations.

Numerous judgments of national and international courts have eventually—but too late and too silently—filled those legal black holes and have technically reestablished humanitarian law in its rightful interpretation. However, this reinstatement of humanitarian law has paradoxically further complicated and weakened it. Indeed, the increased technicalities of humanitarian law drive its application into legal experts’ battles that threaten its immediate and practical application by armed and relief actors in situations of conflict.

Fifteen years after the first publication of the Practical Guide to Humanitarian Law , this new comprehensive and updated edition was essential to trace, in a simple and accessible way, the evolution of humanitarian law and meet the challenge of its civil and civic application in today’s world. This new edition of the Practical Guide expands the vocabulary covered and enriches existing terms with all the legal and jurisprudential debates of the past ten years, as well as the discreet but significant progress made by customary international humanitarian law.

This book is thus written for those who analyze events that take place in the world and those who seek to understand them, those who inquire about the choice and innocence of words stemming from new forms of political and military propaganda.

It is written for those who seek to defend humanitarian space in situations in which the lives of the most vulnerable are threatened by direct or indirect violence and abandonment by governments.

It is written for practitioners who must mediate unequal power relationships among States, armies, victims, international organizations, and nongovernmental groups. Lastly, it is written for each of us, potential victims of violence and armed conflict, to help us resist and survive crimes against humanity and allow the emerging global society to be more humane.

This work aims to restore precise meaning and substance to words that have become a part of the media’s vocabulary of misery and whose weight in law we have forgotten. It seeks to introduce the rules, as well as the systems of responsibility, that international law provides to support resistance amid abnormal situations of crisis and conflict to the inhumanity of individuals and societies, and to madness and chaos.

The challenge of this work is to present humanitarian law from the perspective of victims’ rights and of aid organizations. It thus involves defending and preserving the interests of the weakest from interpretation of the law by dominant actors such as States and armed forces.

It identifies and specifies the rights of victims and humanitarian organizations in situations of conflict, internal disturbances, and crisis, and defines the responsibilities of the various actors in these tragedies and their ability to take initiative. It also signals the traps awaiting aid activities carried out in situations and contexts of extreme violence and dehumanization.

This book is intended to serve as a practical guide to the range of uses of international law in the context of aid activities and in the management of armed conflicts and other situations of crisis. It thus covers humanitarian law, in its strict sense of the “law of armed conflicts,” as well as many other branches of international law and certain aspects of international relations. This includes provisions of the 1949 Geneva Convention and 1977 Additional Protocols on the protection and assistance of victims of armed conflict, but also other texts applicable to peace or crisis situations, such as human rights, refugee rights, peacekeeping law, and those concerning the States’ international responsibility. It also addresses customary international humanitarian law and the obligations of non-state actors and armed groups. The dictionary also covers existing mechanisms of sanction and recourse, including the most recent provisions of international criminal law regarding the fight against international crimes (including torture, war crimes, crimes against humanity, and genocide) as incorporated in the Statute of the International Criminal Court, and as elaborated in the case law of national and international courts.

The fate of civilian populations, the management of public order, and solidarity within countries depends increasingly on the decisions and interventions of international and regional institutions, including, first and foremost, the United Nations. This book thus introduces these institutions and their agencies, as well as the rules applicable to interstate cooperation. It also provides for information on the defense of international public order through international justice, mechanisms of sanctions, peacekeeping, or other international military interventions.

The alphabetical structure has been chosen to address requirements of both legal precision and practical simplicity. The alphabetical and subject indexes complement each other, allowing the reader to make his way among the characteristics that define dangerous situations; protected populations and persons; the rights, duties, and responsibilities of various national, international, and non-governmental actors; and finally, crimes and redresses as provided for in international law. Lastly, a table showing country-by-country ratification of the major international agreements offers a visual presentation of the reality of international law available in each country.

Since the end of World War II, the body of international law concerning human rights and humanitarian law has expanded. It defines the broad outlines of international legal protections granted to civilian populations in situations of crisis or armed conflict. Humanitarian action itself has rarely known such breadth or support. However, in many countries, manmade disasters destroy entire populations and the rule of law collapses into the law of the strongest. Why does such an abyss exist between law and reality?

We must acknowledge that the reality and rights of victims are rarely reflected in the courtroom. And yet, conflict and crisis situations occur primarily in the physical space occupied by civilians, who become primary victims—if not primary targets. Being both the subjects and hostages of these confrontations, civilians find themselves subjected to the direct and double pressure of violence and security propaganda that calls for repealing the rules limiting and controlling the use of force in the name of efficiency and security.

The September 11 attacks in the United States showed that in such circumstances, democratic guarantees controlling the exercise of power may be rendered ineffective, at least in the short term. Indeed, security considerations have led the United States and many other countries involved in the “global war on terror” to question the fundamental guarantees of humanitarian law on matters as serious as torture and detention of individuals outside any legal framework. The abolition of legal protection was brought about in this context by the executive and legislative powers of the country, with the support of public opinion. It was only gradually—and lately—that the judiciary system reversed this trend, restoring the force of law with several decisions taken by the U.S. Supreme Court since 2004. Meanwhile, decisions taken by the International Court of Justice, the European Court of Human Rights, and some national courts have also helped reestablish an interpretation of humanitarian law consistent with its letter but also with its spirit.

The application of the rule of law, in general, and of humanitarian law in particular is the result of a very thorough and objective characterization of facts and situations. The strength but also the weakness of law stem from this characterization requirement. Indeed, a shift in phrasing is enough to shift from a situation in which the rule of law prevails to a lawless one. Every war is, first and foremost, a war of words and propaganda that opens the door to physical destruction by eliminating every legal constraint. Call genocide a “humanitarian crisis,” call an armed conflict a “security crisis,” and the whole legal paradigm and obligations that rest upon States are affected. Call combatants “unlawful,” and those individuals disappear—at least for a period of time—into a legal black hole. States are tempted to call for new laws for each new situation of conflict—and in the meantime, ancient law is considered irrelevant. The difficulty of taking into account the existence and obligations of non-state armed groups who fight State armed forces is one of the main challenges of contemporary armed conflicts. It directly impacts the legal protection of civilians in non-international armed conflict, especially in the areas under control of non-state armed groups. Another challenge is the major and increasing role played by private military companies working alongside State armed forces. But these challenges are more political than legal. Indeed, since 1977 and the adoption of the two Additional Protocols to the Geneva Conventions, humanitarian law already takes into account the military and legal asymmetry that exists between parties to a conflict, notably in non-international armed conflicts. Even if States are the only entities to draft and interpret humanitarian law rules within international conventions, it is worth mentioning that humanitarian law has continued to develop in recent years through customary humanitarian law, the rules of which were published by the ICRC in 2005.

Fighting the Last War—or the “Never Again” Syndrome

Wars and human catastrophes often end with a victory for law and the adoption of new texts that are supposed to provide greater protections and prevent the recurrence of a similar disaster. Does that mean that law always lags one war behind? To answer, one would first need to question governments about their excessive confidence in the use of force and their reluctance to apply existing law to concrete situations. Conflict in all its forms has existed throughout human history. However, crisis and conflict situations are always presented as radically new, thereby justifying exemption from rules established earlier by the states’ community.

This wrongly implies that States are unable to anticipate crimes and abuses they will later accept to commit, whether in the name of highly questionable or highly legitimate causes like restoring peace and order, self-defense, or fighting terrorism. It further reinforces the belief that force alone can prevent crimes.

In 1934, the International Committee of the Red Cross proposed a convention protecting civilians during armed conflicts that would supplement existing rules covering only members of armed forces. States rejected the proposal, as they based the defense and protection of their populations exclusively on the power and deterrent abilities of their armed forces.

World War II invalidated that strategy, illustrating the limits of such protection and showing that a State’s armed forces could turn against civilians, including its own citizens. Several million deaths later, States tried to redeem their political optimism by trying Nazi criminals and strengthening international humanitarian law. The four 1949 Geneva Conventions were adopted in this wake. Only the Fourth Convention, which regulates the protection and assistance to civilian victims of international armed conflicts, represents an innovation. It also anticipates the nature of contemporary armed conflicts by foreseeing in its Article 3, common to the four Conventions, the minimum protection that must be guaranteed to victims of non-international armed conflicts.

However, the international order that stemmed from World War II is based on the protection of the nuclear deterrent rather than on that of humanitarian law. In geographic terms, this “nuclear protection” covered only a limited number of countries. The others experienced wars of decolonization and civil wars that challenged the regimes and countries that emerged from independence struggles. The 1949 Geneva Conventions, focused on conflicts among sovereign States, were not adequate to regulate these wars of independence and other civil wars. Asymmetrical war, which pits organized armies against “freedom fighters” and involves the use of guerrilla and terror tactics inside civilian territory, was not included in existing law. States claimed this for their own advantage, along with the right to use any means to reestablish public order and combat secessionist, rebel, terrorist, or insurrectionist movements. The example of the civil war that tore apart Nigeria from 1967 to 1970, between the self-proclaimed Republic of Biafra and Nigerian armed forces, illustrated the weaknesses of existing humanitarian law.

By 1977, the memory of the wars of independence began to blur and the balance of nuclear terror had divided the world into two rival ideological blocs. At that time, States accepted two Additional Protocols to the Geneva Conventions in order to consolidate the implementation of humanitarian law in all situations and conflicts and to fill these dangerous legal gaps. For the first time, all forms of conflict and methods of war were included. The 1977 Additional Protocols thus cover international as well as non-international armed conflicts through various forms of the use of armed force. Protecting civilians was made central to regulations on the use of armed force, regardless of circumstances.

A significant change in forms of conflict, related to the effectiveness of the nuclear deterrent, marked the second half of the twentieth century. With direct military confrontation between the great powers no longer possible, asymmetric confrontations in civilian areas began. Terrorism was part of the tools used to strike at minds and bodies and raise doubts about a society’s strength and its leaders’ abilities. These methods, tested in so-called peripheral conflicts, were covered, in theory, by humanitarian law, but in practice, by impunity.

The attacks of 11 September 2001 were a horrendous violation of the law of armed conflict and any other international law provision. They marked a turning point in the perception of the threats and forms of conflict in the Western world and the end of military invulnerability linked to possession of nuclear weapons. But the “global war on terror” unleashed in response by the United States required a State to be free from the constraints of the laws of war. This political and legal approach reflects the natural trend within many political regimes that seek to overcome legal constraints imposed by international humanitarian law by substituting a purely security-based approach in which the end justifies the means, both at national and international levels. To impose this new legal framework, some States have used important legal, political, and media means to prove that this “global war on terror” was a third category of conflict not covered by the existing definitions of international or non-international armed conflicts and, as such, was not subject to any rules of humanitarian law. This interpretation did not take into account the fact that the definitions of armed conflicts are mutually exclusive and that a third category of conflict not covered by humanitarian law cannot exist. This questioning of the definitions of armed conflicts has consequently disrupted the whole legal framework relative to the definition and protection of civilians and combatants. The non-recognition of combatant status for members of non-state armed groups has symmetrically weakened the civilian status. This is shown inter alia by the extensive use of the concept of direct participation of civilians in hostilities. Similarly, the guarantees of detention and interrogation of detained or interned persons provided for by humanitarian law were undermined, without being addressed in the human rights protection system. The issue of the violation of the right to life and targeted killings has also been affected by this imperfect transfer of the framework of humanitarian law to the one of human rights law.

This questioning of the very foundations of humanitarian law has highlighted a new kind of violation of humanitarian law generated by abusive interpretations of some States. Instead of simply acting in violation of a rule, some actors have chosen to contest the rule in order to justify their acts. This evolution paradoxically stems from the new binding character of humanitarian law generated by the development of mechanisms of international criminal sanctions of its violations. It is thus on the field of interpretation that the battle between States in order to circumvent the application of humanitarian law has shifted.

International courts now provide a tribune to this quarrel of experts. But even if most of the time those judgments restate the interpretation of humanitarian law consistent to its letter and spirit, they intervene several years after the events. Hence, they do not affect the tactical advantage obtained during the conflict through the disruption of the legal framework applicable to the use of force.

Besides, decisions of international courts sometimes contribute to the contestation of humanitarian law. Indeed, they often use sophisticated legal arguments that can hinder or slow down the application of humanitarian law in the time of action.

Finally, the use of humanitarian law by international criminal tribunals led to stringent interpretations justified by specific principles of criminal law but contrary to the spirit of humanitarian law. Indeed, international criminal law applies restrictive principles while humanitarian law is based on broad principles and rules. Those broad principles and rules of interpretation and application of humanitarian law are fundamental. In situations of conflict, they limit the questioning of fundamental guarantees relative to the protection of people and fundamental principles. Whatever the nature of the conflict, those broad principles and rules are necessary to cover, by analogy, all the persons and situations not specifically or sufficiently defined and protected by humanitarian law.

International criminal tribunals have tried to address this challenge and to mitigate the adverse effects linked to the uncertainty of the applicable law in situations where the qualification of conflict is contested by one of the parties to the conflict. Indeed, international jurisprudence has made a great breakthrough in recalling that humanitarian law and human rights law apply simultaneously and in a complementary manner in situations of conflict. By doing so, international tribunals have contributed to ban the intentional or accidental fabrication of legal black holes. This can be considered as a legal revolution since the separation between human rights law and humanitarian law is rooted in the history of international law. Nonetheless, this integration contributes in return to more complexity in the application of humanitarian law. This complexity, and the uncertainty it creates on the applicable rules in a situation of crisis or conflict, is today one of the main challenges faced by humanitarian actors.

Humanitarian Law for Whom and for What?

The law of war, renamed humanitarian law, is not an ideal body of law, nor is it the product of a humanist consciousness that supposedly arose in the twentieth century. This century is characterized more accurately by mass crimes than by humanitarian practices. Neither pacifist nor naïve, humanitarian law is the product of centuries of reflection on methods of warfare that have been carried out in every era, on every continent, in every society, and by all cultures and all religions. The texts on the regulation of war confirm that all societies seek to limit their own destructive abilities. Even if international codification of this body of law is a recent and, largely, a Western development, its roots and principles are universal.

War is, by definition, a transitional state. Therefore, it must be conducted in a way that will not make a return to peace impossible and will not cause irreversible damage.

The prohibition against killing is a foundation of life in society. Yet during times of conflict, this taboo is lifted in a ritualized and regulated manner to prevent the destruction of society itself.

The law of war is at the crossroad between realpolitik and metaphysics, because in addition to accepting violence and regulating the means and methods of warfare, it addresses concepts of humankind and society.

The goal, then, is to limit reliance on armed force, even if such limits are symbolic, so that the power of destruction is understood as a means and not an end in itself. Certain forms of warfare, some weapons, and attacks on certain persons or places are thus prohibited. The laws of war impose taboos ensuring the survival of the human group. The prohibition against acts of extermination and barbarism seeks not only to save victims’ lives but also to preserve the humanity of the warriors and their ability to reintegrate into society.

Every war has produced new regulations related to these overarching principles that are intended to incorporate technological and strategic changes in conflicts.

Humanitarian law has been enriched by all these changes. It rests on the relationship between a small number of broad principles and a large number of specific rules. It includes many legal provisions that allow it to adapt to changed situations and respond to challenges created by new forms of violence and recourse to armed force.

A principle concerning the right to assistance and protection for the most vulnerable has been added to longstanding principles limiting means and methods of warfare. As of the end of World War II, States no longer have sole discretion over this right to assistance and protection. Humanitarian law assigns the task of monitoring and partial implementation to non-state intermediaries external to the conflict. This responsibility falls, explicitly, to the International Committee of the Red Cross and other impartial humanitarian organizations.

Today, the four Geneva Conventions and their two Additional Protocols of 1977 embody that pragmatic approach. They establish clear limits on the use of force during armed conflicts and detail specific requirements for protecting and assisting the most vulnerable. They also define key distinctions between acts of war, war crimes, and crimes against humanity. States have thus recognized the existence of a principle of humanitarian necessity, which coexists within humanitarian law with the principle of military necessity.

To protect humanitarian principles in situations of armed conflict, humanitarian law is based more on action than sanction. Indeed, if sanctions are a part of every body of law, the random and delayed nature of any legal mechanism is incompatible with the vital and immediate issues at stake in humanitarian action. That is why humanitarian law does not give priority to mass retrospective criminal sanctions.

The effectiveness of this body of law rests, above all, on the quality of assistance and the precise definition of the spheres of responsibility assigned to every actor involved in conflict: States, armed forces, armed groups, humanitarian organizations, and victims. Humanitarian law defines varying and complementary rights and responsibilities to which each is held and for which each must be accountable. Contrary to human rights, these rules are not uniform but vary depending on category of “protected persons” and situations. The goal is to adjust rights and protections based on the danger that each category faces. Relief organizations must be playing their “protective role,” knowing that implementation of humanitarian law can be paralyzed by the refusal to recognize an individual’s status or the nature of a situation. This body of law thus seeks to create a grid of situations of violence, with many small areas of responsibility assigned to each group of actors. In this synergistic system of responsibility, the defense of “humanitarian space” rests directly on relief organizations, which are responsible for negotiating and safeguarding this space with State and non-state parties to the conflict. Relief actors cannot play the role of judges or human rights activists, as international criminal law would like them to. This position forces relief actors to negotiate their presence and thus accept compromise with arms carriers. Their responsibility is to act in dangerous settings by claiming humanitarian law principles that will help them to work and protect the most vulnerable victims. This body of law also partially overcomes the legal constraints of State sovereignty in order to be applicable to non-state armed groups that fight State armed forces. The same limitation of State sovereignty applies to the access of impartial humanitarian aid in territories that are not controlled by the State.

Nonetheless, most humanitarian organizations struggle to grasp this comprehensive and complex body of law, which has long been perceived as the exclusive domain of the International Committee of the Red Cross. Moreover, most international organizations remain bound to the strict framework of State sovereignty and struggle with new goals, such as the fight against impunity.

The differences among humanitarian law, peacekeeping law, human rights, refugee rights, criminal law, and the right to cooperation and assistance usually lead to a fragmentation of applicable rules and mean that the rules applied are those least favorable to victims and least restrictive toward the States and organizations concerned. The breadth of relief action usually leads humanitarian organizations to develop a technical specialization in response to specific categories of suffering. Over time, their knowledge of the law thus tends to cover knowledge of their own rights and mandate. The multiplication of actors results in a fragmenting of responsibilities and a lack of hierarchy between global needs and the ones of the most vulnerable victims. This leads, in practice, to a widening gap between humanitarian law and the rights of humanitarian action and actors. A technical response to crisis situations may appear adequate but cannot shift the balance of power inherent in conflicts to a balance of law that favors the most vulnerable victims.

The Deceptive Revival of Humanitarian Action

The reach of humanitarian action extends today into increasingly complex battlefields and goes far beyond the issue of the direct assistance to victims of armed conflicts. Linked, among other forces, to the management of international security, media promotion, globalization, and growing inequality, the humanitarian phenomenon now affects relationships between individuals, as well as between countries, to an unprecedented degree.

This term also covers actors and organizations with diverse goals, resources, and responsibilities. Despite appearances and speeches, these actions do not always have humanitarian goals. Some may seek to restore public order or stabilize a political situation, rather than assist individuals. The purpose may be to calm public opinion, rather than defend victims’ fundamental rights. Images of aid convoys or the militarization of humanitarian action should not let us forget that most suffering is caused by violence on victims rather than violence on relief and by discrimination in the distribution of relief avoiding the most in need rather than by global shortages.

Drafted in the aftermath of Auschwitz, humanitarian law incorporates the key dilemmas that aid actors face in situations of violence and conflict.

Humanitarian action currently seems to be a societal phenomenon with consensual and globalized forms. Yet it is an ancient activity, indivisible from the human condition and life in society, that has fueled major political, philosophical, and religious struggles throughout history. Today, humanitarian action carries more dilemmas than solutions: dilemmas between action and denunciation of State and other authorities’ failures, between the risk of collusion and the ultimate ethical duty of abstention, among others.

The development of the welfare state strengthened the political theory of the “social contract,” a term coined by Jean-Jacques Rousseau, and relegated humanitarian action to exceptional situations like wars. This political notion emerged from various revolutionary and claims-based movements, which challenged charitable, compassionate, and paternalistic activities and demanded recognition of individuals’ rights to national support and aid. On other continents, specifically in developing countries, humanitarian action has long taken a variety of forms, including international action through missionary aid, colonization, and, later, development aid organized among States or within the United Nations.

Humanitarian action has thus developed in the interstices—the flaws, ruptures, and weaknesses—of the social contract. Its goal is to protect human life and dignity when, for various reasons, society can no longer, or no longer chooses to, guarantee the survival of certain of its members.

Humanitarian action confronts a new challenge today. While human rights have been recognized at a universal level, States and societies, which have the primary responsibility of their implementation, are collapsing, exploding, or being torn apart around the world, leaving individuals defenseless.

At the national level, the State’s loss of power and resources has accelerated the weakening of a host of social services. In many industrialized countries, key programs formerly included among social welfare protections have been privatized or abandoned. Among other examples, public health services; access to medicine; income support for the most disadvantaged, migrants, and refugees; and services for the detained or interned have all been cut radically. Humanitarian aid efforts have assumed some of those functions while awaiting future adjustments.

Paradoxically, the individualist conception of human rights suffers from the same crisis as the one affecting the institution of the State. The progressive affirmation of human rights was the product of the gradual emancipation of individuals vis-à-vis governments. Despite their universal nature, human rights are, in fact, closely linked to notions of nationality and citizenship. Thus, without a State to protect freedoms and rights and take responsibility for providing its weakest members with social supports, the notion of “human rights” is more vulnerable than ever. Humanitarian action and law provide only partial and temporary responses.

Humanitarian action is apolitical in the sense that it does not assume a society-building role or claim to constitute an alternative source of political power that can organize social life. Rather, it maintains relationships that both complement and challenge political authority. It challenges, in practice, the established order by demonstrating its shortcomings. It is also provisional, as its role is to help excluded individuals and populations in danger to survive until they recover their status as active stakeholders in their society’s political and social organization.

The forms of humanitarian action thus vary by context. They express individuals’ pacific attempts to defend spaces of humanity themselves, at the heart of increasingly complex society. They reflect the ability and the responsibility of each individual to repair, in his or her own way, injustices perpetrated against other human beings.

Humanitarian action seeks to restore spaces of normality in “abnormal” and provisional situations through acts of generosity. Beyond material assistance, it seeks to restore a minimum set of rights and human dignity to individuals within a human community.

The current crisis of the welfare state, the fragmentation of certain States, and the chaotic construction of an international society are the newest impetus to the development of humanitarian action. In the face of epidemic, famine, conflict, exodus, marginalized and abandoned populations, but also forgotten, developing, or collapsing countries, humanitarian action occupies the place vacated or not yet filled by organized authorities.

This reality upsets not only the forms but also the means and the meaning of humanitarian action.

Whereas it used to be the deed of individuals protesting the established order, it is conducted today on a massive scale by the international community’s largest institutions. As the social services arm of globalization, it represents a minimalist form of governance adopted by international organizations like the United Nations, the European Union, and certain States, which assign it objectives of maintaining security and controlling population flows, rather than reconsidering the structure of international society.

The former distinction between development aid, acts of solidarity during natural disasters, and humanitarian action during armed conflicts has now faded, replaced by a general sense of complex and chronic crisis. In these contexts, emergency humanitarian action is often presented as the sole form of political expression available.

The diversity of humanitarian actors and the breadth of these actions provide an illusion of consensus and the comforting sight of action. However, they strip the word humanitarian of much of its meaning even as the political space in which collective choices can be questioned disappears.

In principle, the term humanitarian action designates a gesture whose only end is humankind. By its very nature, no national or international political authority can limit itself to such an exclusive interest.

Humanitarian law clearly specifies the difference between the obligations of States and those of impartial humanitarian organizations as neutral intermediaries in armed conflicts.

As soon as it leaves the context of armed conflicts and is carried out by States and international organizations like the UN or the European Union, humanitarian action loses its essential force. It no longer serves as a challenge to the established social order but represents an acknowledgment that political institutions have failed to protect vulnerable populations.

Regardless of governments’ intentions in this area, their actions create a dangerous confusion over the nature of the responsibilities they assume for populations in danger. The confusion has grown over the past thirty years, notably with the increasing role played by the UN in managing conflicts, and with the multiplication of its means, which include military, judicial, and humanitarian components as well as new theories concerning the responsibility to protect.

From Managing Conflicts to Sanctioning State Crimes

Acknowledging a conflict situation is difficult for an organization whose goal is to keep the peace and maintain cooperation among States. This diplomatic restriction still burdens UN institutions involved in humanitarian aid operations.

For forty years, UN peacekeeping missions’ mandates were limited to guaranteeing the peace agreements entered into by States. The end of the Cold War ended the paralysis of the collective security system envisioned in 1945 by the UN Charter. From the 1990s, the organization found itself directly managing a multitude of conflicts that were no longer handled within each ideological bloc. This new UN interventionism relies on a vast array of methods of action and forms of pressure, including material, political, diplomatic, economic, military, and, finally, legal. Beginning in 1991, humanitarian action has provided justification for the UN’s military interventions in certain conflicts such as Somalia and the former Yugoslavia. Humanitarian action was later incorporated into the global approaches established and coordinated by the UN to maintain or restore peace. Behind the stated goal of strengthening the coordination and effectiveness of aid, these mechanisms primarily created pressure on belligerents to stabilize a military situation or support the return to peace. Humanitarian action thus became an issue and a key political weapon for the international community as it plays a major role in managing crises and promoting international security. Peacekeeping missions have become international armed interventions deployed on behalf of the protection of humanitarian convoys and the protection of civilian victims of conflicts. Humanitarian action has gained prestige and is now central to the international balance of power, but in return it has become politicized and militarized. It has thus lost some of its effectiveness and ability to reach populations most in danger, evaluate their needs independently, and win acceptance by different armed groups that do not believe in their neutrality anymore. This phenomenon is accentuated vis-à-vis non-state armed groups with whom the UN cannot legally have relationships without violating State sovereignty. In this context, it is understandable that certain humanitarian organizations refuse to participate in international integrated humanitarian processes managed by States, interstate organizations, or regional organizations, as was the case in Afghanistan with NATO.

The debate has clarified the approaches of private organizations, which fall into two key camps known as “Dunantist” and “Wilsonian.” The first describes groups that defend humanitarian action independent from the pursuit of other goals such as peace, stability, or development. The second applies to private organizations that incorporate their efforts into international institutions’ broader political actions.

The international community’s political interest for humanitarian action has not led to any significant legal progress in terms of the content of conventional humanitarian law. Although some States criticize the inadequacy of humanitarian law to the contemporary forms of armed conflicts characterized by the asymmetry of actors and methods of warfare, none of them has taken the initiative to improve the rules and take on new binding legal commitments in this area. However, the development of humanitarian practice contributed to the emergence of an international custom that materialized in 2005 with the publication by the ICRC of 161 rules of customary international humanitarian law. They enshrine the unification of rules applicable to international and non-international armed conflicts. This unification partially compensates the complexity of legal debates on the qualification of international and non-international armed conflicts and the weakness of conventional rules applicable to those situations.

Another legal development is linked to the emergence of international criminal law and international tribunals dedicated to the repression of the most serious violations of humanitarian law, which are acts of genocide, crimes against humanity, and war crimes.

Since 1949, the absence of an international tribunal that could try and punish perpetrators of war crimes has weakened humanitarian law’s credibility. Fifty years of silence on international law followed the Nuremberg trials. The victorious States that founded the UN during that period refrained from endowing the international community with a permanent international criminal court. In 1948, the Convention against genocide held that such acts would be punished by an international court that States had abstained from creating. For fifty years, the world lived in the shadow of Nuremberg, a symbolic court whose practical effectiveness had disappeared.

For the UN, it was a time for peace, a peace at any price, including that of impunity in the face of mass crimes.

Paradoxically, it was the major failure of two peacekeeping operations in the former Yugoslavia and Rwanda that prompted the organization to seek a new legal dimension for international relations. The creation of two international criminal tribunals served as a laboratory for States, leading to the adoption, in 1998, of the Statute of the International Criminal Court. The Court has jurisdiction over war crimes, crimes against humanity, aggression, and genocide. Carrying out these mass crimes generally requires the support or complicity of the State apparatus and various organs of power: punishing such crimes thus cannot be left solely to national initiative.

In the former Yugoslavia, UN peacekeeping forces confronted killings of civilians and wounded, deportation, and weapons of terror deployed in a war of ethnic cleansing. Classic peacekeeping methods were impotent. To address such situations, in 1993 the Security Council decided to create a tribunal to prosecute crimes that UN soldiers in the field could only observe.

Contrary to the Nuremberg Tribunal, the international system of justice that the UN established through its tribunal for the former Yugoslavia reflected the justice of the vanquished, not that of the victor. The UN hoped to regain through law what it had lost in the balance of power.

Initially, the Tribunal also served as a legal threat intended to support the negotiation of peace agreements, rather than as an autonomous body.

A year later, in Rwanda, the UN once again had to confront the consequences of its armed forces’ passivity during the Rwandan genocide of April–July 1994. There, too, a yawning gap existed between the goals and the reality of the UN’s peacekeeping operations. Under pressure from public opinion, in late 1994 the UN Security Council created a second ad hoc international criminal tribunal to try the authors of the genocide.

The adoption of the Statute of the International Criminal Court (ICC) in Rome on 17 July 1998 represented the first step toward the creation of a permanent international criminal tribunal competent to try, under certain conditions, the authors of the worst international crimes. Nonetheless, the creation of this Court did not achieve the dream of a universal, independent system of justice with jurisdiction over every State in the world, including the most powerful. The balance of political power remains engraved in the Statute of the Court, which has jurisdiction vis-à-vis the States that have signed the Statute and for situations that are submitted by the Security Council with the agreement of all its permanent members.

During the past twenty years, the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as special courts created to try crimes committed in Sierra Leone, East Timor, and Cambodia, and the first steps of the ICC have proved that criminal justice is no longer perceived as an obstacle but an integral part of international diplomacy.

The assumption that impunity would guarantee stability in international relations has collapsed. It would be naïve to infer that the fight against impunity is the effective rule of the new political game. The international criminal justice system remains subject to political expediency and selective State support, depending on local or global agendas. But political and military powers know that they must consider the international legal risks of the mass crimes they might be tempted to commit to win or maintain power.

Besides, the concerned individuals know that they can no longer rely on State protection or on the collective system of obedience to orders within global political or military structures because criminal justice does not judge States but individuals under their individual criminal responsibility.

Last but not least, the existence and actions of the International Criminal Court have helped to strengthen and harmonize the definition and sanctions system of mass crimes at the international level, but also within the national criminal law of all the countries that ratified the Statute of the Court.

International tribunals have also enhanced the understanding and development of conditions for implementing rules of humanitarian law in concrete situations of violence and conflict. The resulting jurisprudence allows us to move beyond affirming general principles and clarify the content of many disputed legal notions whose practical scope has not been specified by international conventions relative to humanitarian law or human rights law. For example, one can think of the definition of armed conflicts, civilians and their rights if they directly participate in hostilities, the judicial guarantees linked to detention and internment, the definition of torture and ill treatment, the responsibility of States vis-à-vis non-state armed groups that operate under its control or with its support, the responsibility and obligations of military commanders and the duty to disobey unjust orders, the definition of human shields or the practice of targeted killings, and many other provisions.

This jurisprudential contribution complicates the presentation and understanding of humanitarian rules and principles. But it is worth the additional attention required because it restores the content and integrity of humanitarian principles and rules that continues to be challenged and misinterpreted by some States.

In this book it was paramount to reintegrate, in an accessible way, the terms and conclusions of a debate that has shaken for a time the very foundations of humanitarian law. The comprehension of these various arguments should make it easier for relief actors in the field to refer to and use humanitarian law while activities are being carried out and over the course of negotiations.

In situations of recourse to armed force, it is essential that each actor evaluate the extent of his responsibility and that of others. It is critical that everyone can challenge the interpretation and use of humanitarian law imposed by dominant States or military actors. Indeed, if international law is imperfect, it is a body of law in motion and constant formation. Action thus contributes to rights being created or disappearing, as “customs” or “precedents” are established. If humanitarian action violates existing legal standards or accepts an interpretation contrary to the goal of protecting victims, it may, paradoxically, weaken humanitarian law and place victims at great risk. Aid activities and acts of resistance to inhumanity must have a legal, intellectual, and material structure if they are to resist the awful balance of power in which they operate and seek to achieve their humanitarian goal. The pages that follow are intended to facilitate and illuminate those choices.

Contrary to other forms of wealth, law can only be exhausted and disappear if we fail to use it.

Solenzara, June 2013