Interview with Prof. Marco Sassòli – Protection of civilians in the mandates of military operations: Legal and operational considerations

21 January 2015

What do you see as the main challenges for humanitarian actors resulting from military operations increasingly having protection of civilians explicitly included in their mandates?

MS: While there are important operational and perception reasons to keep humanitarian action and military action separate, humanitarians often need the military for logistical and protection purposes. In situations of armed conflict, the military, as the primary, most available, and often the only present representatives of a State on the ground, have an obligation under international humanitarian law (IHL) to provide humanitarian assistance and protection to populations in need in the territories they control.

You pointed out that the military have an obligation under IHL to provide assistance and protection to populations in their controlled territories. How does this apply to international peacekeeping missions?

MS: It is true that a clear obligation to protect and to assist civilians exists under IHL only for an occupying power – and peace forces are never considered to be an occupying power. Beyond that, a State exercising a certain degree of control over persons may be considered to have by consequence certain obligations towards those persons under international human rights law (IHRL). However, those matters, which technically refer to whether the civilians are “under the jurisdiction” of a State are not black and white. Could there be a functional jurisdiction? For peace forces, additional questions arise: has the UN or another international organization IHL and human rights obligations? May contingents be attributed to the contributing States? Anyway, in Srebrenica, where Dutch peacekeepers first accepted fleeing Bosnians into their camp and then left them to the mercy (or rather cruelty) of the Bosnian Serbs, there was a clear failure to comply with a duty to protect civilians, as has been asserted by the decision of a Dutch court.

Do you see such mandates having a major impact on whether and how humanitarian organizations should coordinate or cooperate with military actors?

MS: In terms of the impacts of a protection of civilians (PoC) mandate of military actors, we can see that the majority of humanitarians are happy with the inclusion of humanitarian elements in mission mandates such as that of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). Nonetheless, there is a perception issue associated with coordinating with the military. The perceived neutrality of humanitarian actors may be compromised if they are coordinating or cooperating when a military operation uses force to carry out protection activities.

What do you consider to be the most important disagreements or debates or divides in the larger humanitarian community related to the protection of civilians and coordination with military actors?

MS: There are first of all many different views on what PoC is. It is inevitable that different organizations will espouse different conceptualizations: it needs to serve their stated purpose and operational requirements. However, what is important is that actors clearly state what their working definition of PoC is and that other actors understand this definition.

Different actors within the humanitarian community also prefer widely different methods of strengthening PoC. Among humanitarian organizations, for example the International Committee of the Red Cross (ICRC) prefers confidential bilateral negotiations with military actors, while other actors prioritize public advocacy and reporting on the activities of the parties. Yet others may adopt a combination of these approaches. On the other side of the equation, the military naturally see the use of force as their main means of implementing protection – but this can also be interpreted in very different ways. For example, in Colombia, the government justified establishing armed forces bases in midst of villages (which puts villagers at risk of becoming incidental victims of FARC attacks) on the grounds that it was necessary to protect the inhabitants in this village.

Even in situations where the principle is not stretched in such a manner, humanitarians may still compromise their perceived neutrality. Although many would ideally wish to protect civilians without associating themselves with the military, this is evidently difficult in situations of armed conflict when IHL is frequently not respected. Coordination has become essential. In the past, there were few humanitarian organizations – they were then required to negotiate with the local police and armed actors on each side of the conflict who were seen as part of the problem at hand. There was not much need for coordination. Now, there is a higher number of humanitarian actors and, additionally, with the increased presence of international peace forces, they are now also interacting with a military actor that may be seen as part of the solution in protection terms, but that is obviously seen by armed groups opposed to those international forces as the enemy and humanitarian organizations are seen by those groups as no longer to be impartial if they coordinate with such forces. All depends in the end of what coordination means and how it is perceived by the opposing party.

 

 

About the author
Marco Sassòli, a citizen of Switzerland and Italy, is professor of international law and Director of the Department of international law and international organization at the University of Geneva. From 2001-2003, Marco Sassòli has been professor of international law at the Université du Québec à Montreal, Canada, where he remains associate professor. He is commissioner of the International Commission of Jurists’ (ICJ).
 
Marco Sassòli graduated as doctor of laws at the University of Basel (Switzerland) and was admitted to the Swiss bar. He has worked from 1985-1997 for the International Committee of the Red Cross at the headquarters, inter alia as deputy head of its legal division, and in the field, inter alia as head of the ICRC delegations in Jordan and Syria and as protection coordinator for the former Yugoslavia. During a sabbatical leave in 2011, he joined again the ICRC, as legal adviser to its delegation in Islamabad. He has also served as executive secretary of the ICJ, as registrar at the Swiss Supreme Court, and from 2004-2013 as chair of the board of Geneva Call, an NGO engaging non-State armed actors to respect humanitarian rules.
 
Marco Sassòli has published on international humanitarian law, human rights law, international criminal law, the sources of international law, the responsibility of states and non-state actors, and Swiss constitutional law.

 

Interview carried out by Pedro Silva Rocha Lima