Humanitarians Under Attack: Tensions, Disparities, and Legal Gaps in Protection

c. Legal Protection Fragmented Along Organizational Lines

Significant disparities in aid worker security also arise along organizational lines, creating notable gaps in the protection of aid workers under international law. Indeed, the patchwork of international humanitarian law (IHL) relating to the security of humanitarian personnel in situations of armed conflict produces a hierarchy of legal protections that privileges certain categories of aid workers above others, while leaving the majority of aid workers with largely civilian protection.[22] The overall situation facing humanitarian organizations is, as noted by one publication of the International Committee of the Red Cross (ICRC), that “the personnel of humanitarian organizations are protected in an unequal manner and that the rules intended to guarantee their security are very widely scattered, thus leading to a lack of clarity about the exact scope of such protection.”[23] This fragmentation of humanitarian security under IHL has further encumbered efforts at persuading states and non-state actors to recognize and abide by the law protecting humanitarian actors, as well as to bring justice to the perpetrators of attacks.

The first, strongest tier of international legal protection for humanitarian workers applies only to “UN and associated personnel,” who under the 1994 Convention on the Safety of UN and Associated Personnel, “shall not be made the object of attack or of any action that prevents them from discharging their mandate”[Art. 7(1)].[24] The Convention further defines crimes against UN and associated personnel [Art. 9], and obliges states parties to “take all appropriate measures to ensure the safety and security of United Nations and associated personnel”[Art. 7(2)]. Following the 2003 attack on the UN headquarters in Baghdad, Iraq, the UN Security Council unanimously adopted Resolution 1502 (2003), reaffirming that attacks knowingly and intentionally directed against humanitarian or peacekeeping personnel “constitute war crimes,” thus reinforcing the obligations of states under IHL to promote their safety, security, and freedom of movement.[25] The 2005 Optional Protocol to the Convention then expanded of the scope of “operations” covered by the Convention to include a wider set of UN operations and associated personnel, namely those focused on: “(a) delivering humanitarian, political or development assistance in peacebuilding, or (b) delivering emergency humanitarian assistance.”[26]

The second tier of protection derives from the four Geneva Conventions of 1949, which confer special rights and protections — through the use of the distinctive Red Cross/Red Crescent emblem — on medical services of armed forces, civilian hospitals in wartime, and affiliates of the International Red Cross and Red Crescent Movement (including national societies, the International Federation of Red Cross and Red Crescent Societies (IFRC), and the ICRC). Such persons and objects are solely entitled to use the Red Cross/Red Crescent emblem, a recognized and protected symbol under IHL. Deliberate attacks against a person or object carrying the distinctive emblem constitute war crimes under international law. IHL strictly limits the use of the distinctive emblem to these protected persons and objects, as outlined in the Conventions [GC I, art. 44]; strictly prohibits its use by other individuals or organizations [GC I, art. 53]; and requires states to prevent and repress its misuse [GC I, art. 54]. Additional Protocol I to the Geneva Conventions further prohibits any improper or perfidious use of the emblem [AP I, art. 37 and 38]. Perfidious uses include misusing the distinctive emblem to deceive the enemy, which is considered a grave breach of the Convention and Additional Protocol [AP I, art. 85(3)(f)].

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“Despite these protections, attacks against medical and other humanitarian aid workers and facilities are increasingly common... Amidst increasing attacks against aid workers, there is a grave need to improve protection for humanitarians both legally and operationally, and ensuring accountability for intentional or indiscriminate attacks against humanitarian workers, at both the state and individual levels.”

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The third tier of protection encompasses all other humanitarian personnel. Additional Protocol I requires that, in international armed conflicts, the party receiving relief supplies shall, to the fullest extent practicable, protect and facilitate relief operations [AP I, art. 70]. Personnel participating in relief actions shall also be respected and protected to the fullest extent practically possible, though under no circumstances may relief personnel exceed the terms of their mission [AP I, art. 71]. Additional Protocol II, applicable in situations of non-international armed conflict, contains no such protections. However, the Rome Statute of the International Criminal Court (ICC) does define intentional attacks against humanitarian personnel and assets as war crimes in both international [Art. 8(2)(b)(iii) and (xxiv)] and non-international armed conflicts [Art. 8(2)(e)(ii) and (iii)]. As non-combatants, humanitarian professionals also benefit from general civilian protection under IHL.

As this overview of relevant international legal provisions indicates, the law itself enforces disparities between aid workers along individual and organizational lines, creating a hierarchy of protection that privileges UN and associated personnel, and to a lesser extent Red Cross/Red Crescent personnel, above others. “In doing so,” writes Fast, these laws “highlight the tension between protecting aid workers and the populations they assist and codify the internal hierarchies that characterize the aid system, both within agencies (between national and international staff) and within the system itself (between different aid actors).”[27]

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Security incident statistics seem in many ways congruent with these tiered legal protections, yet the lack of disaggregated data between the Red Cross/Red Crescent and NGOs make their relative vulnerabilities difficult to determine. For instance, Humanitarian Outcomes reports that local NGOs and national Red Cross/Red Crescent Societies suffered the most attacks in 2013 (43% of attacks), followed by international NGOs (28%), UN agencies (24%), and the ICRC (3%).[28] However, without data on the general distribution of aid workers across agencies in the field, it is difficult to determine whether these numbers amount to disproportionate rates of attack. More disaggregated data is thus needed to determine whether a significant correlation exists between the protections afforded to different types of humanitarian organizations in the law, and the number and kinds of attacks perpetrated against them, holding other factors constant (such as operating locations, types of work carried out, types of security strategy adhered to, or organizational appetite for risk).[29] Agencies should be encouraged to collect and share these data.

Furthermore, this fragmentation of humanitarian security under IHL has further encumbered efforts at implementing and enforcing protections for aid workers from attack. For one, there is often a lack of clarity or understanding of the scope and application of these various legal provisions. Second, as Fast underlines, “[these] legal instruments put responsibility for the protection of aid workers in the hands of states, which in many contexts is inadequate. State compliance in relation to prosecuting perpetrators or even in complying with responsibility under the various conventions can break down, especially in violent contexts.”[30] Indeed, many of the most insecure operating environments for humanitarians — including Afghanistan, Syria, South Sudan, and Sudan — are characterized by armed insurgencies and state fragility or collapse.[31] Thus, while awareness of the need for more effective security management in response to attacks against humanitarian workers is growing, very few perpetrators of attacks against humanitarian personnel or facilities have been prosecuted, whether as a result of unclear legal status, lack of state capacity during or after an armed conflict, lack of investigation or reporting at the time of the incident, or a lack of political will or outside pressure.[32] As a consequence, there remains a great need to address the prevailing culture of impunity for perpetrators and to deter future attacks through enhanced implementation, application, and enforcement of the law, as well as the creation of additional legal protections to fill existing gaps in the law. This includes the development of expanded legal protections for aid workers, and strengthening the legal obligations upon states and non-state actors to prevent and punish such attacks.

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Given the numerous indicators of disparities in aid worker security outlined above, further research and analysis is also needed to test prevailing assumptions and anecdotal evidence about the vulnerabilities and resiliencies of aid workers as a result of their national or international status, gender, and organizational affiliation, as well as their portfolios, organizational roles, or positioning in the field. For instance, there is a need for increased empirical understanding of the differential security threats faced by staff, as well as how they access information about threats and how they situate themselves within protective networks and mechanisms. With this improved understanding, organizations will be better able to identify protection gaps and tailor their security management strategies to the differential needs of their staff, thus mitigating operational insecurity and upholding their duty of care.

About the Author

Julia Brooks is a Legal Research Associate at the Harvard Humanitarian Initiative. She would like to thank her colleagues Rob Grace and Anaide Nahikian for their extensive comments and edits during the drafting of this paper. She would also like to thank Larissa Fast, Michael Godfrey, Adele Harmer and Nicholas Holmes for their invaluable expert review.

Julia Brooks

Julia Brooks