Protection in Times of Peace or of Internal Tensions

In times of peace, the nationality of an individual establishes his or her personal legal status. The status itself is defined by national laws. These, for the most part, center on the concept of a “social contract,” whereby society confers certain rights and obligations on its members, in exchange for which it ensures their safety and respect for public order. This means that the State has the responsibility for:

• determining, through laws, the rights and obligations of individual members of the national community;
• watching over the physical safety of individuals by defending the public order;
• setting up the legal institutions to which victims can have recourse in case their rights are violated, as well as the appropriate legal procedures to punish breaches of the public order.

National laws that determine the legal status of individuals must be in conformity with the general principles and rights set forth in international human rights conventions. ▸ Human rights ▸ Nationality

In exceptional circumstances, however, such as situations of internal disturbances or tensions, States may restrict the exercise of certain individual rights, to ensure the defense of the country. In such cases, the authorities usually declare a state of emergency or a state of siege, if applicable. ▸ State of emergency/State of siege

Nevertheless, even under such conditions, there are certain rights that the State may not suspend or infringe on in any way known as “inalienable” rights. These are the fundamental guarantees that remain applicable at all times, for all individuals. These rights, which include judicial guarantees, are enumerated in international human rights conventions. They are inalienable rights and correspond to non-derogable obligations. ▸ Fundamental guarantees

The numerous conventions set forth various mechanisms to which individuals or States may have recourse in case individuals’ human rights or fundamental freedoms are violated.

National tribunals and some regional human rights courts have jurisdiction to control the legality of the behavior of the State in such situations. This judicial control aims at evaluating the restrictions imposed on human rights in the name of national security and the defense of public order in periods of internal disturbances or military occupation.

▸ European Court for Human Rights ▸ Human Rights ▸ Proportionality

Protection in Times of Conflict

In times of armed conflict, the protection provided by an individual’s own State may no longer be sufficient, either because individuals are exposed to an adverse party or because their own State authorities have adopted restrictive measures that affect them. These restrictions may concern individual human rights and the operation of the justice system, for instance.

Humanitarian law therefore sets forth the principal guarantees that States involved in a conflict must grant individuals (whether of their own nationality or that of the adverse party). It develops a protection mechanism based on two complementary aspects of its rules and regulations:

• provisions that grant an international legal status to individuals in danger;
• international regulations addressing relief actions.

The Ambiguous Meaning of Protection

The term protection can hide dangerous ambiguities. Traditionally, in law the term implies the existence of rights for individuals and proceedings to enforce them. For example, we speak of the protection of human rights to refer to the rights of individuals recognized by international conventions as well as those entailed in the domestic law of their own country. We also talk about “protection” in reference to the rights and specific proceedings provided for in domestic and international law, which takes into account the vulnerability of certain categories of persons such as minors, the sick, persons with disabilities, the detained, refugees, victims of sexual violence, or victims of armed conflicts. In this case, “protection” is synonymous to a specific legal status (national or international) granted to those different categories of vulnerable persons. In armed conflict, international humanitarian law establishes several categories of “protected persons” who must receive specific attention. The term “mandate of protection” carries the same meaning when used to designate the responsibility of the organization in charge of watching over the implementation of the international legal text that makes provisions for those specific statuses, for example, the High Commissioner for Refugees for the UN 1951 Convention Relating to the Status of Refugees or the International Committee of the Red Cross for the 1949 Geneva Conventions.

The term protection must not be confused with the guarantee of a physical security for individuals who, even in time of peace, are imperfectly protected by the rule of law and the structures of public order set up by their own State.

More recently, the term protection has been introduced in the UN peacekeeping operations’ mandates to designate protected zones where vulnerable populations shall be protected by international soldiers. In this context, the use of the term is misleading, because it does not guarantee the physical protection of endangered populations. Instead, this is a mere legal clarification of peacekeepers’ mandate, which authorize them to use force in case of an imminent attack against civilians in the limit of their available means. This clarification aims at avoiding scandals that occurred in the past, when blue helmets notably failed to protect civilians in Somalia, the former Yugoslavia, and Rwanda. These mandates do not entail any obligation of means or results enabling international armed forces to ensure the security of the population.

Since 2001 and the report of the International Commission on Intervention and State Sovereignty (ICISS), the term protection is associated with the doctrine of the “Responsibility to Protect,” which was adopted by the UN in 2005 and invoked by the Security Council in March 2011 to justify the international intervention in Libya.

▸ Peacekeeping ▸ Protected areas and zones

Protection and Assistance, Protection and Denunciation

Humanitarian law explicitly connects assistance to protection. It is not restricted to a quantitative approach of relief aiming at fighting food or medical shortages, but includes the right to evaluate the needs and to impartially control the distribution of relief by privileging the most vulnerable (API Arts. 70–71, APII Art. 18).

Indeed, the distribution of humanitarian aid (assistance) is intimately linked with the negotiation of access and the ability to address and mitigate the vulnerability of those in need (protection).

Humanitarian organizations should not artificially separate these two dimensions of action. They must take into consideration the vulnerability of certain categories of persons as well as specific guarantees provided by humanitarian law for these categories.

Negotiation is a central element of the protective dimension of relief work delivered by humanitarian organizations. While protection must not be assimilated to the denunciation of human rights or humanitarian law violations, it must not be separated from assistance.

If the history of humanitarian action has shown that silence and confidentiality were not obligatory conditions for the success of relief work, it has also shown that public denunciation of violence did not necessarily lead to the disappearing or the diminution of the phenomenon. This is why denunciation is not an automatic principle for relief organizations, contrary to most human rights organizations. Denunciation is a useful tool for negotiation, in order to stimulate responsibilities and set limits in situations of conflicts. It is also a solution of last resort in case of deliberate attacks on civilians and vulnerable persons.

The emergence of International Criminal Tribunals and the International Criminal Court has led people to think that international criminal justice could protect victims. In practice, international courts and tribunals do not have the means that enable them to ensure the security of witnesses and victims in the countries where they live, and they possess very limited means to relocate such persons in third countries under new identities. In the long run, the fight against impunity represents a component of the security and the protection of individuals, but in contexts where political instability or conflict reign, judicial action may put victims at risk.

The time of justice is not the same as the one of armed violence. If ever, judicial sanctions will always be pronounced after the crimes were committed. This is why in situations of violence, it is necessary to find humanitarian ways to immediately limit the exposure of the most vulnerable people and strengthen their capacity of survival.

The obligation not to harm remains a core principle for humanitarian workers and relief organizations. Those professional principles have been reiterated and clarified to take into account the recent evolution of humanitarian action, marked by international interventionism, both military and judicial.

▸ Responsibility

ICRC Professional Standards for Protection Work

Considering the diversity of actors who pretend to act in the name of the protection of the population, the ICRC adopted in 2009 Professional Standards for Protection Work, which aim at avoiding practices that can further endanger vulnerable populations and improving the understanding of this activity of “protection” by international governmental and nongovernmental actors.

As a mandated organization for protection of victims of conflict, several tendencies encouraged the ICRC to develop the Professional Standards of Protection Work. Indeed, since the 1990s, the references to protection activities have increased among very different actors, ranging from human rights NGOs to the United Nations Security Council. Beyond the consensus about the importance of protection, there is a great diversity of meaning and content for each actor. This term is used to refer to public reports by NGOs, general advocacy activities, and report publications by NGOs on the fight against impunity or denunciation of violence and violation of rights in a given context. It also refers to the negotiation of the conditions of assistance by humanitarian organizations and safety actions regarding individuals at risk. Finally, it is equally used with respect to United Nations military operations with peacekeeping or peace-enforcement mandates, which include a protection component. More recently, it has emerged within the UN system as a legitimate reason to authorize the use of military force or to impose the competence of the International Criminal Court.

Such proximity between humanitarian and human rights actors as well as military and judiciary international activities has increased the risk of confusion about the ability of each one to define and abide by its own clear responsibility regarding “protection activities.” This illustrates the need for commonly agreed professional standards, in order to ensure a better response capacity, greater predictability, and more effective cooperation and coordination between protection actors. Taking into account lessons learned from major failures of these pretended protection activities and their huge related human fatalities, it was necessary to reaffirm the professional component of protection and to restate that good intentions are not enough and can even increase the danger to the people intended to be protected.

Several attempts were made to bridge the gap created by a widespread simplistic vision, limiting humanitarian actor’s responsibility to that of plain assistance provider as opposed to defenders of rights entrusted to human rights and advocacy organizations. One of them, the Sphere Project, launched in 1997 by the Steering Committee for Humanitarian Response (SCHR), Inter Action with VOICE, and ICVA, published in 2004 a Humanitarian Charter and Minimum Standards in Disaster Response, containing rights and principles of action in addition to technical assistance. The International Federation of the Red Cross adopted a Code of Conduct in 1994, which put assistance activities in connection with basic protection principles. But these initiatives fell short of concrete professional impacts.

Professional standards emerged through workshops led by the ICRC between 1996 and 2000. In 2001, the document “Strengthening Protection in War: A Search for Professional Standards” established, among other things, a list of the different “modes of action” available to protection actors on the ground, namely, substitution, support, mobilization, persuasion, and denunciation. It also enshrined the “protection response egg,” a graphic representation of three different levels of action in front of any pattern of abuse, which are gradually halting its occurrence, working alongside the victims, and promoting lasting changes in the environment in order to diminish the likelihood of recurrence. Finally, it proposed a common definition of protection, which helped humanitarian organizations to implement a rights-based approach.

In 2009, the ICRC published the Professional Standards of Protection Work carried out by humanitarian and human rights actors in armed conflict and other situations of violence. The document was reedited in April 2013 with special consideration given to the notion of informed consent and the link between data management and new technologies. These Standards gather and develop overarching principles and fundamental rules that could establish the foundation for safe and effective protection work in general.

The standards recall the difficulties and danger of such activities and remind each actor of the imperative respect of the “do no harm principle.” The other following principles are stated as professional imperatives:

• Humanity, which means placing the individual at the center of the protection efforts;
• non-discrimination and impartiality, which requires a fair assessment of the situation and the population needs, taking into account factors of vulnerability as well as priority needs rather than being driven by the organization’s own mandate;
• independence and neutrality, which are the warranty of the credibility of protection actors;
• anticipation, which means that protection actors must think in advance of potential risks and take appropriate action to avoid harmful effects that could arise from their work as well as ensure that their activities do not have a discriminatory effect;
• accountability, which means that protection actors are able to set objectives, define means, and assess the effective results. They must implement a systematic approach to (a) determine priorities in their area of competence, (b) set clear objectives in accordance with organizational capacities, (c) design a plan of action, (d) set monitoring and evaluation tools, and (e) use a participatory approach that includes those at risk in the decision-making process; and
• respect for human rights.

These principles are followed by basic rules of professional behavior that organizations engaged in protection work must be able to fulfill:

• Protection actors must know and respect the international and national legal frameworks;
• ensure that they are not substituting for the role of the authorities;
• communicate with the relevant authorities when possible;
• ensure clarity and transparency of intent;
• interface with non-humanitarian actors engaged in protection;
• promote cooperation and complementarity by taking into account the roles and capacities of other protection actors;
• provide information on protection and facilitate diffusion of information in emergency situations;
• react to violations of human rights by telling the relevant actors;
• manage sensitive protection information by only collecting information on abuses and violations when it is necessary for the design or implementation of protection activities and by ensuring informed consent and privacy of the person concerned; and
• ensure professional capacity by providing regular trainings, minimize exposure to risks, and ensure ethical conduct by staff.

▸ Children ▸ Civilians ▸ Collective security ▸ Detention ▸ Internally displaced persons ▸ Duty of commanders ▸ Human rights ▸ Humanitarian and relief personnel ▸ Individual recourse ▸ International humanitarian law ▸ Military objectives ▸ Occupied territory ▸ Prisoners of war ▸ Protected objects and property ▸ Protected persons ▸ Protecting powers ▸ Refugees ▸ Safety ▸ Stateless persons ▸ Women ▸ Wounded and sick persons