Protecting civilians: a lesson from Iraq on why we can’t ignore international humanitarian law

by Eva Svoboda | Overseas Development Institute
Monday, 31 July 2017 09:00 GMT

A man cries as he carries his daughter while walking from an Islamic State-controlled part of Mosul towards Iraqi special forces soldiers during a battle in Mosul, Iraq, March 4, 2017. REUTERS/Goran Tomasevic

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We must ensure that all civilians are protected, not just because it is a legal obligation but because it is morally right

Today, 11 million Iraqis are in need of humanitarian assistance. Of that, 3.4 million are internally displaced. Many have been displaced multiple times. There is little doubt that Iraqis will be breathing a sigh of relief at the news that Mosul, after three long years, has been freed from the clutches of the Islamic State. Nadia Murad Basee Taha’s account of her experience stands as a horrific testimony of life and death under the Islamic State (IS), but her voice is sadly one of the thousands trapped in this conflict.

As Mosul is gradually cleared of IS presence, only time will unveil the scale of civilian deaths. There is a strong sense among aid agencies that in today’s conflicts, there has been a gradual but steady erosion of commitments to protect civilians. While the true death toll of the battle against IS may never be known, civilian casualties should never be accepted as mere ‘collateral damage’. The last battle in Mosul is illustrative of what civilians have to endure during armed conflict. It should serve as a stark reminder of how critical it is to uphold the norms of international humanitarian law and not let them slide backwards.

Daily life in times of war

For those living in Mosul, there was often no way out. They were trapped, prevented from seeking safety, lacked basic items with little or no access to health care and lived under constant fear of airstrikes, sniper fire, shelling, and bombs. While Mosul is no longer subject to the horrors of IS rein, normality is still a distant dream. Rebuilding the city will take years and cost billions, let alone rebuilding a society that has been utterly torn apart.

The High Commissioner for Human Rights stated recently that ‘international crimes may have been perpetrated by ISIL’. Ever since the rise of IS, the group is known to have put people in the direct line of fire to protect themselves and to have sold women and girls into sex slavery.

Indeed, the road leading to the defeat of IS in Mosul has not been without its repercussions. Mosul, as well as Aleppo or Raqqa in Syria, are stark examples of what urban warfare can do to civilians. There is nothing new about wars in cities. Drone footage from Aleppo and Mosul bring home the sheer level of physical destruction. But what we see are only the visible effects of urban warfare; they do not show what daily life is like for people in these cities.

Using or abusing international humanitarian law

As the battle for Mosul continued to rage, aid agencies and human rights organisations became increasingly concerned with the rise of civilian casualties following attacks by the Iraqi Security Forces and the US-led coalition. Allegations were raised that the use of imprecise weapons – even if their intended target was of a military nature - may have caused unnecessary civilian casualties.

What is often misunderstood is that there is no such thing as reciprocity in international humanitarian law. Regardless of how badly one’s opponent may behave, or how little regard they may show for the laws regulating combat, the other side still needs to do its utmost to protect civilians.

To be fair and legally correct, not every civilian casualty is automatically a violation of international humanitarian law (IHL). As horrible as this may sound, IHL accepts that there will be some civilians who will die in armed conflict, whether it is in the hands of governments or non-state armed actors such as IS. What IHL does not accept, however, is that civilians are targeted deliberately or that there are insufficient precautions taken to protect them. The primary responsibility may rest with states, but armed non-state actors too, are bound to protect civilians. 

Closing the gap: IHL and reality

While the laws regulating armed conflict are sufficiently robust, it is their implementation that is deficient. Despite a variety of programmes which disseminate knowledge of IHL to a range of audiences[1], including states and their armed forces, judges, legislators, armed non-state actors, the staff of international and non-governmental organisations and the general public, there remains a persistent lack of familiarity with the law.

Nevertheless, there are concrete steps that can be taken to bridge the gap between law and reality.

Firstly, IHL must be understood and pursued in peacetime as well as during armed conflict. The law should be incorporated into military manuals and operational orders and directives, both by states and armed non-state actors. They must then establish mechanisms to investigate and discipline or punish those found to have violated the law. One possible option is to create a position similar to the Secretary-General’s Special Representatives on Children and Armed Conflict and on Sexual Violence, with a mandate to consider IHL more broadly.

Secondly, all sides in war and states supporting them need to show the political will to strengthen existing IHL mechanisms. This is critical as enforcement remains a significant problem. As it is now, there is no central authority in the same way that domestic legal systems have courts and police forces. The conduct in war is entirely dependent on the goodwill of parties to the conflict. Awareness of the law and self-regulation by parties to armed conflict is therefore central to promoting compliance. One possible way of doing that is through civilian harm tracking mechanisms which can help armed forces in tracking, analysing and investigating civilian deaths.

The reality is that wars are unpleasant and messy, but IHL is there to limit the terrible consequences that war inflicts on civilians. While the battle for Mosul may have come to a close, civilians are still not entirely out of harm’s way as it will take the Iraqi forces some time to fully regain control of the city. As military action continues, we must ensure that all civilians are protected, not just because it is a legal obligation on all sides but because it is morally right.

Eva Svoboda is the Senior Research Fellow of the Humanitarian Policy Group at the Overseas Development Institute. She has worked in emergencies in the Middle East, Africa and Asia for NGOs and the ICRC focusing particularly on protection issues. Her current research focuses on protection of civilians, humanitarian access and the role of local organisations

[1] Conducted for example by the International Committee of the Red Cross (ICRC) or Geneva Call.