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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Safety

Respect for national and international public order is meant to ensure the security of individuals. In times of peace, the rule of law forms the legal basis of public order activities designed to protect individuals. ▸ Human rights

Situations of conflict, on the other hand, inherently result in diminished security both for individuals and for the State itself. In such precarious circumstances, the justice system cannot, in and of itself, prevent or halt immediate threats of physical violence. Moreover, the State can resort to force and restrict human rights in order to restore public order. In situations of internal disturbances, the obligation of maintaining security and order remains guaranteed by national law in conformity with standards fixed by international and regional human rights conventions. The judicial control of the acts of the executive power and police forces is safeguarded by international and regional courts of human rights. For example, the European Court of Human Rights is competent to examine the proportionality between the security requirements and the respect for human rights and may request a State to change its behavior. ▸ Proportionality

In situations of armed conflict, the paradigm of security and rule of law is largely ineffective. This is why international humanitarian law (IHL) spells out rules relative to the limitation or restriction of the use of force and fundamental guarantees of victims in terms of relief and right to legal protection. Serious violations of international humanitarian law are considered war crimes or crimes against humanity and engage the criminal responsibility of its authors before national and international tribunals. ▸ Fundamental guarantees

The 1949 Geneva Conventions and their 1977 Additional Protocols enumerate certain specific prohibitions regarding military and civilian authorities, aimed at protecting the physical security of the most vulnerable groups within each population. To achieve respect for such provisions, humanitarian law tries to take into account the specific stakes and dangers at play for each category of persons. Hence, it establishes levels of responsibility for the different armed actors, so as to ensure the safety of the following groups or entities:

  • Prisoners of war: The evacuation and transfer of prisoners must be carried out humanely and in adequate conditions of safety (GCIII Arts. 20, 46, and 47). It is forbidden to expose prisoners of war to a source of danger with the aim of using their presence to render certain areas immune from attacks (GCIII Art. 23).
  • Foreigners: Foreigners present on the territory of a party to a conflict are generally considered civilians. They are entitled to leave that territory under adequate conditions of safety, which are the responsibility of the national authorities (GCIV Arts. 35, 36).
  • Civilian internees: A party to a conflict may intern protected persons only if its security makes it absolutely necessary to do so. Precise limits are set to protect places of internment against attacks, and guarantees are established to ensure adequate conditions of safety in case of transfer (GCIV Arts. 42, 78, 88, and 127).
  • The civilian population: To ensure the safety of the civilian population, parties to a conflict may not deprive civilians from means of subsistence. For instance, measures of security adopted by a party to a conflict may not prevent civilians from having paid employment (GCIV Arts. 39, 51) or receiving relief. In case of imperative military necessity, the population of an occupied territory may be evacuated (GCIV Art. 49) upon good safety conditions.
  • The State: If a protected person carries out activities that are hostile to the security of a State (e.g., espionage or sabotage), that person loses his or her status of protected person but continues to benefit from the fundamental guarantees accorded to all individuals (GCIV Art. 5).
  • Parties to a conflict: Relief personnel may not exceed the terms of their mission and must therefore take into consideration the security requirements of the party on whose territory they are carrying out their duties (API Arts. 71, 74, and 75). If need be, the occupying power may disarm the members of civil defense personnel to ensure its own security (API Arts. 63, 64). The occupying power may modify the criminal laws of an occupied territory so as to be able to ensure its own safety; however, there are established limits to protect the population from abuses. For instance, if a protected person must stand trial, a representative of the protecting power has the right to be present for the trial (GCIV Arts. 64, 74).
  • Protected persons or installations: The occupying power cannot compel protected persons to ensure, by force, the security of the installations where they are forced to work (GCIV Art. 51).
  • Relief organizations: The principle of inviolability guarantees the safety of relief personnel, the free passage of humanitarian supplies, and the safety of other relief operations carried out by such organizations (API Art. 71). Parties to a conflict commit to providing relief societies with all facilities necessary to accomplishing their mission. States may take security measures to limit the activities of these organizations; however, such limitation must not hinder the supply of effective and adequate relief to all protected persons (GCIV Art. 142).
  • Medical transportation (land, sea, air): All medical vehicles, ships, craft, and aircraft shall be respected and protected, subject to the relevant provisions such as those governing the conditions for flights and the notifications and agreements concerning medical aircraft (API Art. 23–29).
  • Refugees: The State on the territory of which refugees have sought refuge is responsible for their safety. To speak of “refuge,” the territory in question must be safe; therefore, refugee camps must be established at a reasonable distance from the border.

Unfortunately, the safety of refugee settlements has not always been ensured. They have sometimes been used as buffer zones to protect a border from attacks. At other times, such “protected zones” have been militarized and used as a base from which to launch attacks. Yet international law sets forth among the responsibilities of the territorial State that:

—it must not use the presence of refugees as a reason or a base from which to carry out hostile activities against another State, and

—it must ensure the safety of refugees.

The UNHCR and NGOs working in partnership with it are responsible for monitoring the quality and level of safety and protection enjoyed by refugees.

Duty of commandersHumanitarian and relief personnelMedical servicesProtected objectsProtected personsProtectionPublic orderResponsibility

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