Deconfliction - Humanitarian Identification and Notification

Deconfliction is a term originally used in military jargon to describes the process of reducing the risk of friendly fire within an army or between allied forces operating in the same battle space. “Deconfliction” has more recently been extended to include “the exchange of information and planning advisories by humanitarian actors with military actors in order to prevent or resolve conflicts between two sets of objectives, remove obstacles to humanitarian action, and avoid potential hazards for humanitarian personnel.” From this humanitarian perspective, “deconfliction” involves “the notification of humanitarian location, activities, movements and personnel in both static and non-static locations to the military for the purpose of protection against attacks and incidental effect of attacks under international humanitarian law.”

This procedure has been promoted by the United Nations Security Council (UNSC) in the wake of its resolution 2286 on the protection of the medical mission in 2016. It urges states and parties to the conflict to integrate practical measures for the protection of the wounded and sick and medical services into the planning and conduct of their military operations. The UN Under Secretary General for Humanitarian Affairs later referred to the establishment of a humanitarian notification systems (HNS).

Practically speaking, humanitarian “deconfliction” often takes the form of a list of global positioning system (GPS) coordinates shared by humanitarian organizations with militarized actors. In many instances such as in Syria and Yemen, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) plays a central role in compiling and transferring to parties to the conflict huge database listing the coordinates of all kinds of humanitarian, medical and civilian’s locations given by non-governmental organisations (NGOs) and authorities. However, this OCHA mechanism is self-declaratory and does not entail the control by OCHA on the effective nature of the various “deconflicted” locations. Organization such as the International Committee of the Red Cross (ICRC) and Médecins sans Frontières (MSF) try to maintain a direct contact with parties to the conflict and to only transfer GPS coordinates of location directly under their responsibility. The aim is to stir mitigation and negotiation process in case a party to the conflict consider that a location may have lost its IHL protected status due to specific circumstances and have been used to commit act(s) harmful to the enemy.

Deconfliction mechanism differs from identification and notification procedures as envisaged in the Geneva Conventions and their Additional Protocols, mainly because “deconfliction” – although is aimed at reinforcing “protection against attacks and incidental effect of attacks under international humanitarian law” – is not an IHL but a purely military term. Humanitarian organizations must therefore understand the specificity of humanitarian identification, notification, and protection framework as well as processes framed under IHL versus the non-binding and military centred “deconfliction” system.

Under IHL, a humanitarian, civilian and medical location may lose its protected status if it is used outside its humanitarian or medical function to commit act(s) harmful to the enemy. Being registered on a military deconfliction list is a trustful process between military allies but humanitarian organizations cannot rely on such deconfliction list to ensure their security. They must always guarantee their control over the strictly and exclusively humanitarian, medical, and civilian nature of their activities, personnel and facilities which gives them their protected status under IHL.

IHL provides that the parties to an armed conflict must at all times distinguish between civilian and civilian objects, on the one hand, and combatants and military objectives on the other hand, and those attacks may only be directed against the latter.

The general protection of civilians in conflict is framed by IHL trough the fundamental principle of distinction that prohibit direct attack on civilians. It creates an imperative duty towards a commander to positively identify military objective as opposed to civilians. Therefore, IHL does not provide for special distinctive sign allowing identification of civilian people, building or goods. Military Commanders are also under the obligation to respect the two additional principles of precaution and proportionality with regard to non-intentional civilian damage caused by an attack on a legitimate military target located close to civilian person or objects.

This general protection of civilian is supplemented by the special IHL protection regime provided for specific personnel, goods, activities, and premises such as medical ones. IHL notably provide specific emblems, signs and signals to allow the identification of protected medical personnel, transport and units but also for cultural object and property, civil defence personnel, their installation and material as well as for camps of prisoners of war or internees, etc.

In the case of medical personnel, transport and units, the specific protection stipulates they must also be “respected and protected in all circumstances”. This specific protection goes beyond the plain prohibition of attacks and require all parties to the conflict to actively facilitate medical activities carried out by impartial medical personnel according to IHL and medical ethics. However, this specific protection would be meaningless if medical personnel and objects could not be clearly identifiable as such by all actors of the conflict. For that purpose, the Geneva Conventions of 1949 and their Additional Protocols regulate the use of the distinctive and protective emblems of the Red Cross, Red crescent and Red crystal for medical personnel, transport and units operating in situations of armed conflict.

In addition to this distinctive emblem, IHL also invites parties to the conflict to notify each other of the location of their fixed medical facilities. In that sense, “deconfliction” is closer to the notion of notification found at article 12(3) of API.

However, numerous domestic laws confer to the ministry of defence the authority to permit the use of the emblem in situation of armed conflict. Therefore, domestic legislation on the emblem would largely deprive non-state armed group party to the conflict from the right to use the red cross emblem for protecting medical facilities under their territorial control. This constraint has been notably exemplified since the start of the Syrian war in 2011 by absence of emblem and numerous attacks on medical facilities located in territory under the control of non-state armed opposition groups. However, it must be recalled that the display of the medical protected emblem is a visible sign of the protected status of a medical facility but not a precondition for it. Indeed, it is the knowledge of the humanitarian and medical nature of a given person, activity and facility that create its protected status whether or not it displays the protective emblem. The knowledge of the humanitarian and medical status of a facility by the parties to the conflict may be also asserted through special notification system. Humanitarian notification is therefore instrumental in the protection against attack as a complement to visual identification.

It must also be noted that IHL do not provide any specific visual protective emblem for non-medical humanitarian personnel and activities. They can only rely on their general protected civilian status. Indeed, the various logos of the numerous humanitarian organizations involved in relief activities do not benefit from the international legal recognition of the distinctive or protective emblems by parties to conflict.

Beyond the visual identification system laid out by IHL, contemporary trends in the conduct of hostilities heavily make extensive use of electronic geo-localization as mean of identifying military targets and protected facilities. As a result, the GPS coordinates of fixed medical or humanitarian facilities have become a central element for the identification and ensuring a protection from attacks.

The electronic identification system is increasingly used by humanitarian organizations to inform warring parties of the location of humanitarian personnel, structures, activities, and transports. This activity is referred to as “deconfliction”.

Despite their importance for the protection of (civilian) medical units, the purpose and scope of these three different, yet complementary, concepts (of identification, notification and “deconfliction”) are exposed in the below section.

“Deconfliction” v. identification and notification

The identification and notification system envisaged by IHL only concern the medical missions during armed conflict. IHL provides a precise definition of the structures, personnel, and medical transport that benefit from special protection under IHL. It also specifies the circumstances and conditions under which they may lose their protection. This special protection differs from the general protection provided by IHL for civilian property and persons and humanitarian relief.

“Deconfliction” is a simple military practice with no legal framework. It involves the notification of all ‘locations, activities, movements, and personnel’ involved in humanitarian operations. The concept of humanitarian operation is not defined, but it goes beyond the medical mission within the meaning of IHL and encompass also all civilian personnel and property involved in any type of humanitarian relief activity. “Deconfliction” therefore treats all humanitarian, civilian, and medical personnel, structures and activities in the same manner. It therefore carries the risk of weakening the content of the special protection afforded by IHL.

The extensive use of electronic deconfliction for medical and humanitarian personnel and activities raise concern as to the effectivity of the IHL general protection of civilians who cannot benefit from deconfliction list.

It also raises additional concerns for humanitarian and medical organization since it does not provide guarantee of protection and may turn into burdensome administrative process or vetting system, undermining IHL unconditional right of humanitarian assistance for victims of armed conflict.

The humanitarian notification system can be considered as one of the tools available in the civil-military coordination and a mean for humanitarian access and security. It shall not shift the responsibility for upholding IHL which lies solely with the parties to the conflict.