Daniel Lubowa[1]

Introduction

Just before the mid Nineteenth Century, there were no organized and well established army nursing systems for causalities and no safe and protected institutions to accommodate and treat those who were wounded on the battlefield[Bullough, Vern L and Bonnie Bullough’2^nd edn,1972].In June 1859, a Swiss businessman, Henry Dunant who had travelled to Italy on a business venture, witnessed the ‘Battle of Solferino’, an engagement in the Franco-Austrian war, shocked by the terrible aftermath of the battle, he advocated for the formation of a national voluntary relief organization to help wounded soldiers in case of war. It was against this background that the International Committee of the Red Cross [ICRC] was founded, bringing on board, a new era only which set out to civilize war, thus establishing rules designed to protect,  potential victims of armed conflict.

 The ICRC is the only institution explicitly named under international humanitarian law [IHL] as a controlling authority. The two entities have significant roles in war situations. The ICRC gives relief to the war victims while IHL establishes various forms of protection of all war participants. However, in war situations, the ICRC has faced or continues to face a number of challenges such as lack of cooperation from Governments where they are working, death of ICRC staff at battle fronts, being understaffed etc. It is some of these challenges which render the ICRC ineffective in its role of promoting and implementing IHL, despite the comprehensive legal regime in place governing armed conflicts. The current article briefly highlights some of the challenges facing ICRC in promoting IHL particularly focusing on some African conflict zones as case studies.

ICRC and IHL: Their Genesis, Evolution and Contact Points

 At first, there were unwritten rules based on customs that regulated armed conflicts. Then came bilateral treaties drafted in varying degrees in detail gradually coming into force. The belligerents sometimes ratified them after the war was over [ICRC ’2^nd ed, 2004 p.8].The ICRC and the codification of IHLhave evolved from the notion that the individual is entitled to certain minimum rights in situations of armed conflict. The founding of the ICRC and starting point of IHL came about when Henry Dunant, a Swiss business man and Guillaume Henri Dufour, a Swiss Army General of great renown formulated the idea in ‘A Memory of Solferino ‘published in 1862 following the battle of Solferino witnessed by Dunant in Italy. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic conference in Geneva. The Swiss Government at the prompting of the founding members of the ICRC, convened the 1864 Diplomatic conference which was attended by sixteen states who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field, thus, this whole process giving birth to the ICRC and IHL as we know them today.

ICRC and IHL: Mission

 The ICRC is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence providing them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict, endeavoring to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Though the ICRC tries to live up to its mission, during conflict situations, in very many times, the ICRC has been let down, in the sense that it is unable to fulfill its principle objectives, due to the dangerous environment in which it continuously operates in[Pierre Hazan and Jean  Francois Berger,2004].

IHL: Legal Controls of the ICRC

The ICRC operations are generally based on IHL, the four Geneva Conventions of 1949, their three Additional Protocols of 1977,2005, the Statutes of ICRC and the Red Crescent Movement and the resolutions of the International conferences of the Red Cross and Red Crescent[ICRC’2^nd ed,2004,p.2].All these articles and laws together form the mandate given to the ICRC by the International community, i.e. by global States.

ICRC Operational Challenges in Some Key Conflict Zones in Africa

The ICRC maintains a strong operational presence on the African continent, with activities focused on protecting and assisting people affected by armed conflict or other forms of violence. Working closely with the national Red Cross and Red Crescent societies throughout the continent it promotes a greater recognition and wider implementation of IHL.Though this is the case, the ICRC faces numerous operational challenges in its work in some conflict zones as illustrated below:

Eastern Congo:

 In Congo, after almost two decades of intermittent armed conflict and festering insecurity, vast numbers of people have died, mostly from disease and malnutrition, and countless have been displaced. Dozens of humanitarian organizations such as the ICRC have been deployed continuously since even before the first major armed conflict in 1996, struggling to respond to the most urgent needs of the population [Al Jazeera, 14^th January 2013, Para IV]. With the sheer complexity and intractability of the crisis, eastern Congo is increasingly at the epicenter of professional challenges confronted by the humanitarian community. How to engage with dozens of continuously mutating armed groups to ensure at least a minimum of access and protection of the civilian population against the most egregious attacks is one such challenge. Reaching populations in need when swathes of the vast country are inaccessible by road is another. So too is ensuring the safety and security of humanitarian workers operating in such a difficult environment [ICRC Case book 2022].

Somalia:

Two decades of armed conflict have had a heavy toll on Somalis in and outside of Mogadishu. Fighting has destroyed essential infrastructure, including hospitals, all over the country. Access to proper health care is precarious, at best [Guha-Sapir D. Ratnayake R 2022]. Somalia’s hard lined-Islamist al-Shabaab rebels say they ordered ICRC out of areas the group controls in the South and central parts of the country [ICRC 2022]. The al-Qaeda linked al-Shabaab kicked the ICRC out of areas under their control because it had falsely accused the Islamist group of hindering food distribution. They also claimed that the ICRC was distributing food to the local population that was past its expiry date.

South Sudan:

The South Sudanese conflict is a conflict between Government and opposition forces in South Sudan that started in December 2013.The Fourth year of Sudan’s civil war saw a severe deterioration of humanitarian conditions across the country. The Conflict has since claimed innumerable lives and left millions forcibly displaced from their homes and unable to meet even their most basic needs. The ICRC continued to work on the frontlines of the crisis throughout 2017, providing life saving assistance to the most vulnerable. In September 2017, the ICRC suffered the tragic loss of one of its staff, Lukudu Kennedy Emmanuel Laki, a driver who was shot and killed while helping to deliver aid to the victims of the conflict in Western Equatorial. Consequently, the ICRC immediately suspended most of its activities in the region and resumed a month later after receiving security reassurances from the concerned parties. Kennedy had been the first ICRC staffmember to lose his life in a violent attack since the beginning of the South Sudan conflict in December 2013[ICRC, 2022].

ICRC and the Implementation of IHL in Some Conflict zones in Africa: The Setbacks: A Discussion

Lack of Access to War Victims by ICRC

The ICRC’s important operational challenge is the inability to ensure access to victims of armed conflict and other situations of violence. Most of the time, ICRC in conflict a situation is unable to access war victims, understand their situation and addresses their needs. This is further enhanced by the ever-changing conflict environment, making access more difficult due to security constraints [ICRC, 2022]. Northern Mali was illustrative of this difficulty, whereby just only a handful of agencies managed to carry out structured and sustained activities in these highly polarized or politicized environments.

Inability of Civilians to Access Basic Social Services

Amongst the most pressing situations facing the ICRC are those in which civilians and communities cannot access commodities or basic services such as health care, education, water and sanitation as they are caught up in the middle of the fighting and freedom of movement is restricted. This happens in main cities, villages and residential neighborhoods where hostilities damage or destroy buildings and infrastructure, and areas are cordoned off by one side or the other, leaving civilians trapped and unable to approach soldiers or fighters for fear of being harassed or arrested [Betsy Jose and Peace A. Medie Oxford Research Encyclopedia, Politics, 2016].

Security Challenges: ICRC Targeted

The recurrent attack by parties to many conflicts against medical structures, transport and staff, including ambulances, rescue workers, hospitals and clinics jeopardize the timely provision of emergency care and is an issue that has necessitated strong renewed attention from the ICRC and its Movement partners. In certain situations, humanitarian organizations face threats and rejection by armed groups [ICRC, 2012]. For instance, various studies have indicated that more aid workers were killed, injured or kidnapped in 2011 than ever before, a reality that had an impact on the choices made by agencies in several contexts [Paul Christopher Webster, Vol.183[13],2011].

Armed Conflict Horrors in Africa: ICRC Incapacitated, Helpless

As earlier on noted, the ICRC derives its mandate from the Geneva Conventions of 1949 and their Additional Protocols of 1977.The Geneva Conventions, also known as IHL protect man against the consequences of war. In spite of such international treaties, the African continent is continuously witnessing a daily catalogue of horrors[such as  murder, forced disappearance, torture, cruel treatment and outrages upon personal dignity, rape and other forms of sexual violence and atrocities perpetrated against the very persons these laws were designed to protect. These violations do not illustrate the inadequacy of the law, but rather that the rules are either not known to the leaders and combatants or that they are quite disregarded [Jennifer Nduku Kiti,1997,p.106].This whole state of affairs renders the ICRC, incapacitated, helpless in its work.

Conclusion

The ICRC is the fruit of private initiative; attaining global stature.  As noted, the main constraints for ICRC at global level are linked to access and security. In many areas, even where ICRC is granted access, it is simply too dangerous for international staff to operate. However although the ICRC still manages to perform considerable work in most conflict situations in Africa, the multiplication of serious security incidents, the ultimate consequences of which is to block assistance activities or force humanitarian organizations to withdrawal unilaterally from the operation, has prompted them to question the means used to date to ensure the safety of their  personnel. In this regard, it is recommended that there should be some preventive measures initiated by states in Africa in times of peace, such as ratification of or adherence to the instruments of IHL such as the Geneva Conventions of 1949 and their Additional Protocols, 1977. With the growing number of organizations present in conflict situations, there’s need to raise the professional standards of humanitarian action in making itself felt.

The parties to an armed conflict must take all appropriate measures in ensuring the safety of the personnel of ICRC. They must take steps in protecting them from all attacks and   protecting their official premises, private residences and means of transport. States must do everything in their power to grant and guarantee to humanitarian organizations and to their personnel the immunities they require in carrying out their tasks in complete independence most particularly those relating to their safety.

[1]Daniel Lubowa is a Lecturer of Law at St. Augustine’s University of Tanzania Law School in Mwanza, Tanzania with more than 15 years of teaching experience. He holds an LLB[MUK], LLM[SAUT]. He is  currently a Ph  D  Candidate at the Open  University of Tanzania. Dar es Salaam, Tanzania. He is a researcher, author, human rights activist as well as motivational speaker.

By: Jemimah Jehopio.

Background

Attacks in Zamfara State, Nigeria in January 2022 resulted in over 200 deaths and several injuries(United Nations, 2022). Unfortunately, such terrorist attacks are not uncommon on the international scene and thus it is no surprise that efforts to combat terrorism are high on the international agenda, as evidenced by the adoption of robust counterterrorism (CT) measures. While these efforts harbour legitimate objectives, they have affected International Humanitarian Law (IHL) as well as its implementation through principled humanitarian action in consequential ways. This article seeks to highlight key conceptual and operational challenges arising from the interactions between the CT measures and IHL. The article also explores the way forward, highlighting that while it is justifiable to view terrorism through a security lens, respect for IHL and effective CT measures are complementary objectives that can and should be pursued in tandem.           

Impact of Counterterrorism Measures on International Humanitarian Law

The CT measures criminalising humanitarian engagement with designated terrorist groups essentially withhold humanitarian aid from certain groups of people thus eroding the concept of impartiality in the provision of humanitarian assistance (International Committee of the Red Cross, 2015). Such criminalisation influences the choices of humanitarian actors regarding where and whom to serve their programs, rather than those choices being dictated by needs alone (Inter-Agency Standing Committee, 2019). Instead, humanitarian actors are also obliged to give equal weight to avoiding certain groups and areas in which those groups might have a presence or the potential to access aid (Norwegian Refugee Council, 2018). As a result of this cherry picking, some communities may not get the assistance they need solely because of their geographical location (Norwegian Refugee Council, 2018). Consider countries like Afghanistan, Somalia and Nigeria where designated non-state actors effectively control vast swathes of territory, a disproportionate percentage of humanitarian programs is taking place in government-controlled areas partly to comply with the CT legislation (Norwegian Refugee Council, 2018).  In light of the foregoing, criminalising humanitarian engagement with designated groups can inadvertently result in the devastating effect of withholding humanitarian relief from those most in need.

Contractual obligations imposed on humanitarian organisations requiring cooperation with CT efforts, by submission of partners’ personal information, threaten the independence of humanitarian agencies (Mackintosh, 2011; Kurnadi et al., 2016). The principal objection of the humanitarian community is that this contractual requirement promotes the perception that NGOs are intelligence sources (Duplat & Mackintosh, 2013). One example of such obligations placed on NGOs is the United States Agency for International Development (USAID) Partner Vetting System (PVS), which requires “foreign assistance grant applicants to submit detailed personal information on leaders and staff of local partner charities to be shared with US intelligence agencies” (Charity & Security Network, 2012). Consider the effect of such contractual obligations in Somalia where two US organisations, International Medical Corps and CARE, were expelled from areas under Al-Shabaab control in 2008 for allegedly spying and gathering intelligence that led to the assassination of Al-Shabaab leader Sheikh Maalim Adam Ayro in a U.S. air strike (Elhawary et al., 2011). Once again, sixteen humanitarian actors were expelled in 2011 following accusations by Al-Shabaab of, among other things, “collecting data” and “lacking complete political detachment and neutrality with regard to the conflicting parties in Somalia” (Duplat & Mackintosh, 2013). On this basis, the contractual obligations in donors’ clauses requiring submission of partners’ personal information have opened Pandora’s box as demonstrated by the catastrophic expulsions of humanitarian actors.

The CT legislation and sanctions regimes criminalising provision of direct and non-direct material support to designated terrorist groups impose actual and potential liability for carrying out principled humanitarian action (International Committee of the Red Cross, 2015). This liability arises from the very broad and vague definitions in criminal legislation of unqualified acts of “material support” to terrorist organisations that could, in practice, result in the criminalisation of the core activities of humanitarian organisations such as life-saving medical assistance or humanitarian relief (International Committee of the Red Cross, 2015). In such circumstances, principled humanitarian actors face a dilemma: either to forego activities protected under IHL or conduct such activities but risk criminal liability (International Peace Institute, 2018). Moreover, Courts have interpreted the humanitarian exception narrowly as including the provision of medicine only, thereby excluding the provision of medical treatment that draws upon medical expertise (U.S. v. Farhane, 2011; U.S. v. Shah, 2007). Support of a broad nature such as training, expert advice or assistance, services and personnel could attach liability under the material support laws (Elhawary et al., 2011). It thus becomes apparent that the inclusion of broad definitions of material support in CT legislation can effectively criminalise core activities of humanitarian actors.

The issue of financial de-risking, where financial institutions are unwilling to provide services for humanitarian organisations owing to concerns about counterterrorist financing regulations, is a major hurdle for humanitarian actors (Norwegian Refugee Council, 2018). Organisations often resort to informal, unregulated methods such as hawalamoney transfer networks when unable to transfer money into certain areas (Gordon & Taraboulsi-McCarthy, 2018). Ultimately, de-risking is counterproductive to efforts to reduce terrorist financing, since the unregulated methods employed in its pursuit are particularly vulnerable to terrorist financing risks (Financial Action Task Force, 2013). In practice, the effects of financial de-risking are significant delays to implementation of programming (Norwegian Refugee Council, 2018). Consider the banking restrictions imposed on Non-Governmental Organisations (NGOs) in the West Bank, and particularly in Gaza which delay receipt of funds causing not only a reduction in the number of operational NGOs but also the projects to lose some of their significance to beneficiaries (Gordon & Taraboulsi-McCarthy, 2018). Upon this background, financial de-risking not only gives latitude for terrorist financing but also delays program implementation, which are all red flags under IHL.

Reflections on the Way Forward

In spite of the clear evidence that IHL is as an endangered species in the CT realm, there is room to mitigate the existing tension by adoption of the measures now briefly highlighted. Firstly, the careful crafting and effective implementation of humanitarian exemptions and language around respect for IHL in CT measures. Secondly, administrative clarity in the implementation of CT measures. Thirdly, setting up multi stakeholder dialogues to coordinate and ensure coherent policy approaches that protect IHL and principled humanitarian action. Finally, systematic assessment and reporting on member states’ efforts to develop and implement CT measures that protect principled humanitarian action.

Conclusion

In conclusion, there is no doubt that security and counterterrorism objectives are pertinent and must be pursued. However, respect for IHL and humanitarian action are essential tools in the effort to combat terrorism and not privileges to be sacrificed at a time of tension. Humanity, as well, is fundamentally important and a balance ought to be struck in the pursuit of CT objectives, upholding the integrity of IHL with utmost consideration of the imperative necessity for principled humanitarian action. The adoption of effective policy, normative and legal mitigation measures is essential in carving out a humanitarian space in the CT realm and ensuring that principled humanitarian assistance can continue to reach those most in need.