TERMINOLOGY
It was mentioned that a difficulty of terminological precision was created when "protection civile " was translated into English by "civil defence", whereas "civil defence" was generally rendered in French by "défense civile ".
In many countries, especially in the Third World, the fire brigade and civil defence were one and the same: they acted as firemen in peacetime and as civil defence workers in wartime. In some cases civil defence activities were provided by the army. This was partly explained by the fact that many civil defence activities had originally been performed by the military but tended to devolve increasingly on civilians. In the opinion of one expert, this made the distinction between combatants and non-combatants much more problematic.
In the opinion of one expert, civil defence involved four tasks including civil protection, continuity of government, provision of the civilian population and the armed forces with the necessary goods and services, and assistance to the armed forces in the development and maintenance of defence capability and operational freedom. "Civil defence" therefore embraced a much wider range than "civil protection" and an effort should be made to separate the two concepts.
It was noted by an expert that the aim of civil defence appeared to be protection for civilians in conflict areas from the military, who would be attempting to follow the military political direction given. In that case, if the perception of the military in the area was that elements of civil defence were undertaking functions contrary to military aims, the cooperation and protection elements sought by IHL would be of little value. The military would have three concerns in relation to their task: first, if they perceived civil defence work as a danger to themselves, and likely to result in military casualties, they would take steps to reduce freedom of civil defence action. Thus, the example given by one participant of bomb disposal experts working in civil protection units would be seen as hindering a military objective and could lead to curtailment of the civil defence activities. Secondly, with regard to enemy activities, if the picture were clouded by organizations performing civil defence duties, protection from the military might not be forthcoming. Thirdly, in regard to education of the military, whatever laws were made, people were prepared to break them and it was up to the leaders on the ground to convince local commanders of the requirement to comply with the rules. Mostly, the military found civilians a hindrance and therefore had to be convinced by civil defence and other humanitarian organizations that they were acting only in the interests of the civilian local population, without any intention of interfering with military objectives.
Another participant agreed that the problem was not only one of terminology but of what services were being performed by the civil defence or civil protection units. The question of terminology could not be ignored, however, and suggestions, mostly from countries whose native language was not English, had been made to substitute "protection" for "defence" in the title of the unit in which he worked but, unless the English wording of Article 61 of Additional Protocol I was altered, he would do his utmost to preserve the term "civil defence" with the internationally agreed definition used in that instrument. He thought that since the end of the cold war, there had been a swing towards "civil protection" as the term "civil defence" tended to have belligerent connotations, but in many parts of the world, "civil defence" was still the commonly accepted term. At a recent meeting he had attended in Asia, all countries had referred to "civil defence". Therefore Europe should not be allowed to exert an undue influence on terminology at the risk of losing contact with civil defence organizations elsewhere. In Asia, "civil defence" was used in the same sense as "protection civile" in French in regard to the rescue services only.
Some countries considered "protection civile" in peacetime as encompassing civil defence, economic defence and even military defence. The English translation of "protection civile" was generally "civil defence" and it was therefore necessary to define the various tasks under discussion. Most countries referred to "protection civile " in relation to peacetime only. The concept was poorly understood in reference to conflict. The expert noted that the term "défense civile " included the concept of self defence - it was therefore difficult to find equivalents in French and English in order to avoid ambiguity.
It was suggested that the special function, not a particular organization, should be protected. If they fulfilled the tasks set out in Article 61, the organizations concerned should be afforded protection. Such organizations were active but not necessarily bearing the international emblem.
Tuesday, 1 July, Morning session
Opening of the session
Mr. Sandoz (ICRC), Chairman of the session, said that in 1977 he had been involved in the elaboration of Additional Protocol I, which represented a new departure and a new area of humanitarian law for the ICRC. He believed that it was now time to assess the effectiveness of its provisions and see whether they were respected and applied, while at the same time being realistic and taking into account the different situations prevailing in various parts of the world.
BRIEFING ON THE RESULTS OF THE QUESTIONNAIRE
Dr. Jakovljevic informed the meeting that only 33 of the 188 States Parties to the Geneva Conventions had replied to the questionnaire (see annexes). The low percentage of replies was not sufficiently representative, but nonetheless yielded interesting information. They showed that little information was available on the application of the relevant provisions and that civil defence action did not receive much publicity. It was regrettable that some questions had not been answered at all and in other instances the replies were not clear.
In his view, the answers were sometimes over-optimistic regarding the protection of civil defence and awareness of the emblem. He believed that in some countries, on the contrary, there was complete ignorance of civil defence. Countries that had been involved in conflicts had provided little information on exactly what tasks had been carried out by civil defence, although it appeared from the replies that in most countries civil defence covered international and non-international armed conflict situations, as well as peacetime. Some examples of civil defence assistance by non-belligerent and neutral States in time of war had been given, but the opportunity afforded by the Additional Protocol had not been utilized sufficiently. More information was available on peacetime activities.
In general, civil defence was an umbrella structure, but it was sometimes identified with one of its components. Different solutions had been adopted regarding official responsibility for civil defence and, provided that there was compliance with the relevant Articles, all of them were valid.
As regards the emblem, in some countries the international sign was used, either alone or in conjunction with other symbols.
Point 1: The framework of IHL regarding civil defence activities
The Chairman, introducing the point, explained that the drafters of Article 61 had considered that it was important to specify the civil defence tasks that could benefit from protection and he enquired whether the list was deemed to be useful, whether the activities listed were indeed those carried out and whether civil defence performed other tasks?
One expert stated that in his country civil defence, which was a State structure under the authority of the Ministry of the Interior, carried out the tasks listed in Article 61 of Additional Protocol I in peacetime in accordance with the regulatory texts. In time of armed conflict, on the other hand, special regulatory texts entrusted civil defence with other specific tasks such as security and public order.
Another participant explained that in his country the government agency responsible for civil defence was involved in all activities that assisted the civilian population. One shortcoming was that it was not entrusted with the dissemination of IHL. In his view, the list in Article 61 should be considered indicative rather than exhaustive.
The Chairman, pointed out that it was necessary to specify the civil defence tasks entitled to protection.
An expert while agreeing that the list could not simply be left open, suggested that protection of the cultural heritage be added. Civil defence could for instance film all cultural objects so that if they were harmed they could be repaired or replaced.
Several other experts thought that the list in Article 61 was valuable and that, in order to guarantee protection, it was important not to expand it. It was pointed out that for reasons of economy and tradition Governments would call upon civil defence workers to carry out tasks other than those in the list and they should not be precluded from doing so in peacetime. In conflict situations, however, civil defence personnel could only be protected if they were carrying out the tasks mentioned in Article 61 and were wearing the civil defence emblem.
If the list was expanded, it would lessen the chances of application of the Article. He shared the view that the list must be kept within limits in order to obtain the agreement of the military.
Another participant considered that, although the list might be restrictive, it could be interpreted broadly to include tasks that were not specifically mentioned but were consistent with the tenor of the text.
The Chairman stressed that humanitarian law must be acceptable to the armed forces so there had to be a balance between the desire to do the utmost to protect the civilian population and recognition of the realities of war. The list was not over-restrictive and ecological disasters, for instance, could be covered under subparagraph (a)(ix).
However, there was disagreement, and some experts considered that the list was too restrictive. One participant wished to see the list expanded. Subparagraphs (a)(viii) and (ix) should include chemical, biological and radiological protection; (xiii) should include sanitary services on the spot; (xiv) should be extended to cover all material goods, the environment and the cultural heritage. In a recent European conflict, civil defence had been responsible for protecting the cultural heritage, and had helped to repair war damage to cultural and other property but it had sometimes been over-ruled by the military so cultural objects should receive protection under Additional Protocol I.
The Chairman emphasized that Article 61 focused on protection in emergency situations and rehabilitation might not be compatible with Article 61(a), which referred to civil defence organizations "assigned and devoted exclusively" to the tasks listed in subparagraph (a).
Noting that each country would give priority to the tasks in the list according to its own needs, he said that it would be interesting to learn what priorities were attached by countries to the tasks listed in Article 61(a). He also wondered whether the terms of Article 67.1(a) regarding the military assigned to civil defence organizations were strictly respected and how it was possible to prevent the armed forces from abusing the protection afforded under this Article.
From a military point of view, one expert considered that Article 67 was a source of concern because no army, however large, could afford to assign forces to civil defence in time of war and even if they only bore light weapons, as permitted under Article 67.1(d), they became legitimate targets and so could not be protected. The Article did not reflect the reality of conflict situations.
It was noted that in the past United Nations troops had had to use force in order to be able to carry out their humanitarian mission and experience in that regard was relevant to the application of Article 67.
Medical personnel, which generally wore a Red Cross or Red Crescent and worked in medical facilities were easily distinguished and would not be treated as a military target. The case of civil defence was different and if the military personnel assigned to it were armed, they would instinctively use their arms for defence and thus make themselves legitimate targets. The Red Cross and Red Crescent were so well established that their emblem was widely recognized, but that was not the case for the civil defence emblem. If civil defence personnel carrying out their tasks were unarmed, the very nature of their activities would ensure their protection, but that would not be true if they were armed.
The Chairman indicated that even medical personnel had the right to be lightly armed in order to protect medical facilities from looting and, in the case of civil defence, light weapons might be necessary to protect food supplies. Originally Article 67 had been included because civil defence came under the military umbrella in some countries.
It was noted that in the Russian Federation civil defence had been totally separate from the military since 1992. The population found it difficult to conceive of humanitarian aid being provided by the same forces that were fighting them. In peacetime, the problem did not arise, but in war the military and civil defence should remain strictly separate. The civil defence emblem was widely known and recognized in the Russian Federation and civil defence personnel did not carry weapons.
It was thought that Article 67 was a product of its time when the military had been mainly responsible for civil defence, but the situation had now changed. On the other hand, Article 67 was wholly redundant because armed forces acting under the United Nations Charter undertook civil defence tasks and should be protected.
Another expert considered that the only problem was posed by subparagraph 1(d). Article 61 had to be interpreted broadly, whereas Article 67 should be interpreted restrictively. He had reservations about revising the civil defence articles because revision was a cumbersome procedure that could take many years.
It was agreed that Article 67 should be applied restrictively. Article 67.1(f) precluded United Nations peacekeeping forces that fulfilled civil defence tasks from protection, but they were protected under the United Nations Convention on the protection of its personnel.
One expert noted two contrasting trends in civil defence: firstly, in developing countries there was a growing trend towards involving the military to a greater extent; secondly, in developed countries the trend was towards entrusting responsibility for civil defence to a civilian structure. With regard to subparagraph 1(d), it was difficult to define "light weapons" and it was not made clear whether the personnel would wear military uniform. It would be difficult for opposing forces to see whether or not members of the armed forces assigned to civil defence were displaying the protected emblem and there was a real risk they would be attacked if they were armed and in military uniform.
The Chairman noted that in some countries the armed forces constituted the most solid government structure and so allowed civil defence to function. Regarding the difficulty of identification, he drew attention to Article 15.3 of Annex I to Additional Protocol I, which stated that the "The international distinctive sign shall be as large as appropriate under the circumstances" and "civil defence personnel shall, as far as possible, wear headgear and clothing bearing the international distinctive sign". These provisions went beyond simply bearing a distinctive armband.
A participant explained that civil defence in his country was under the responsibility of the Ministry of the Interior. Article 67 represented an awkward compromise because paragraph 2 made it clear that military personnel did not suddenly change their status as soldiers just because they were involved in civil defence.
Another expert said that the fact that civil defence in his country was under the authority of the Ministry of Defence had created problems so it was now being established as a separate entity. There was no problem in using military personnel for civil defence tasks in peacetime, but in a conflict situation it was only possible if the interests of the armed forces and the civilian population's need for protection coincided. There were also the danger of misuse of the emblem and the problem of how to ensure respect for humanitarian rules in non-international armed conflict. In his experience in a recent conflict, the emblem had not been respected and in order to enhance protection there should be penalties for violations.
It was concluded that the list in Article 61 was restrictive, but could be interpreted broadly. Civil defence services should correspond to the list if they wished to benefit from protection. Governments were of course free to assign other tasks to civil defence, but these would not benefit from protection under Additional Protocol I. It was suggested by one expert that Governments be asked to notify other States Parties whether their civilian civil defence structure corresponded to the provisions of Additional Protocol I and whether or not they also had a military civil defence structure that was consistent with the relevant provision in the Protocol.
Point 2: Dividing up roles between actors and
Point 3: Situations not covered by IHL, or those of a non-international conflict
It was emphasized by one expert that points 2 and 3 were interlinked and should be considered from a threefold perspective: 1) the field of operations (operating in national territory, transit through a third country, or operating in a receiving country), 2) the situation (disaster in peacetime, non-international armed conflict, or international armed conflict) and 3) the type of organization (purely civil defence organizations as defined in Article 61, military organizations performing civil defence tasks as defined in Article 67 or other non-governmental organizations authorized to perform civil defence tasks). A peacetime disaster in national territory was governed by national legislation and had no international law implications. For international assistance in peacetime disasters, the Oslo guidelines, even though not binding, should be followed. There was, however, no valid international humanitarian law on assistance by humanitarian forces operating in a third country. The development of the United Nations programme on the use of military and civil defence resources in disaster relief had opened up an entire new area , but had raised the issue of defining the resources. Since the time of adoption of Additional Protocol I, the use of foreign military resources for humanitarian assistance had become much more common, even though many countries had strong civil defence structures capable of providing humanitarian assistance in third countries. In the light of this new situation, the United Nations had decided to set up the Military and Civil Defence Unit, which he headed, within the Department of Humanitarian Affairs. In addition to dealing with traditional military and civil defence organizations, the Unit also utilized private organizations authorized by governments to supply humanitarian assistance provided that the government made the assistance available in response to a request sent to it by the Unit. It was noted that it was preferable to receive a request from the receiving nation, but that was not always possible and operations could be implemented pursuant to a Security Council decision if a government was no longer in effective control of the territory. These new elements made the situation in respect of humanitarian law still more complex and they were not covered by the present text of the Additional Protocols.
Another participant said that, from a humanitarian viewpoint, the use of military and civil defence resources in situations of conflict raised serious problems. Humanitarian action should be independent, impartial and neutral and the actors should respect these principles. The military, however, were not necessarily perceived to be impartial or the aid might be channelled through a peacekeeping operation decided upon by the Security Council at the political level. It was essential to distinguish clearly between military and humanitarian tasks, and the military's task should be to provide security in order to allow humanitarian operations to take place, rather than to be directly involved therein.
Referring to the previous speaker's position regarding the concept of impartiality, an expert emphasized that it was a peacekeeping principle. Nevertheless, perception was the key to impartiality, and the provision of humanitarian aid itself might be seen as partial by some factions. He explained that Chapters VI and VII of the United Nations Charter allowed UN troops to defend themselves. The political mandate given by the Security Council was the essential factor. If a political aim was clearly defined in the mandate, together with the tasks to be performed, the military could then define the specific action required to achieve that state. The problem in some recent United Nations operations had been that the political aims had not been correctly identified at the outset or had changed during the course of the operation. The military staff then had to evaluate exactly what it was hoped to achieve and adapt the action accordingly while still using the means originally put at their disposal. Basing itself on lessons learned from the past, the United Nations had realized that its capability to carry out more robust operations was limited by political will and the resources made available to it. If these were adequate, such operations could be implemented successfully. He finally noted that, to his knowledge, the international civil defence emblem had not been used in United Nations operations.
The Chairman noted that the factor distinguishing humanitarian action and United Nations operations was not so much impartiality as neutrality. The ICRC, for example, did not have any position regarding the causes of a conflict, whereas by virtue of a Security Council decision the United Nations had adopted a position. Civil defence tasks could be performed in United Nations operations, but it was difficult to relate them to Additional Protocol I and the protection it afforded.
Tuesday, 1 July, Afternoon session
Point 2: Dividing up roles between actors and
Point 3: Situations not covered by IHL, or those of a non-international conflict (continued)
The Chairman asked the participants for their views on whether United Nations forces could be protected under Additional Protocol I if they were carrying out civil defence tasks and displaying the emblem. In his view, they were not covered by the present system but were protected under the United Nations Convention. One of the problems was that UN forces were entrusted with such a wide variety of missions.
Referring to use of the civil defence emblem by United Nations forces, one expert gave his personal view that the United Nations uniform was sufficient to distinguish them and the addition of the emblem would not make any meaningful difference. Furthermore, if the forces had to put on and divest themselves of the emblem constantly according to the task they were performing, they would have reservations about carrying out civil defence tasks. In addition, for military reasons, it would not be advisable to use several different emblems, as this would only cause confusion. In conclusion civil defence de facto formed part of the mandate of peacekeeping forces.
The Chairman agreed that it would not bring real advantage to United Nations forces to display the emblem and that the United Nations emblem was of much broader scope than the civil defence emblem.
One participant emphasized that a distinction had to be drawn between peacekeeping in the traditional sense, which depended on agreement among the parties, and peace enforcement, which was subject to a decision by the United Nations. In peace enforcement missions, it might be advisable to display the civil defence emblem under the appropriate circumstances.
It was noted that most civil defence organizations already had distinctive uniforms that could not be confused with military uniforms, but problems arose when military forces were asked by the United Nations to carry out specifically humanitarian activities. At present, no rules governed that situation. If peacekeeping forces were given a totally separate status, they could not carry out humanitarian activities.
The view was expressed that the United Nations role was covered by Article 64, which referred to international coordinating organizations without specifying them.
The Chairman said that, for the ICRC, it was important to distinguish between United Nations peace enforcement operations, in which United Nations forces might be attacked and IHL had to be respected, and purely peacekeeping operations, in which the forces should not be subject to attack but, if they were, the offenders should be punished. Finally, he asked to what extent United Nations forces had collaborated with national civil defence organizations when carrying out civil defence tasks?
One participant noted that United Nations peacekeeping forces might find themselves in a war situation so the context was always fluid and there could be no clear-cut distinction between peace enforcement and peacekeeping.
One expert explained that in his country the relations between the civil defence organizations and the United Nations forces had fluctuated. For the latter, the focus had been on protecting and assisting the local population, so they had to receive the support of the local authorities in order to fulfil their mandate. They not only carried out the tasks enumerated in Article 61, but also undertook other action such as providing clothing and rebuilding schools.
Referring to the same context, another participant said that there had been instantaneous cooperation between civil defence and United Nations forces. The difficulties had occurred with the military in charge of civil defence, through whom all requests for assistance had to be channelled.
Another expert emphasized that NATO had had to learn how to deal with a multitude of non-governmental organizations and with local authorities that were not always friendly. It had been perceived that there was a cultural gap between the thinking of the military and civilians and to overcome this and enhance military-civilian cooperation joint military-civilian units had been set up at NATO military headquarters.
It was indicated that the civil defence organization in the Russian Federation had provided assistance in former Yugoslavia under a contract with UNHCR.
The Chairman asked what was the relationship between civil defence organizations and the local Red Cross or Red Crescent Society in times of war and peace? He also enquired whether there was competition between the National Society and civil defence to attract volunteers?
He drew attention to Articles 68 to 71 of Additional Protocol I, which dealt with relief action, noting that there were two approaches to such operations, either through the civil defence structure or through international action involving the Red Cross. The Chairman asked further whether civil defence services were perceived more as humanitarian organizations rather than State bodies?
It was replied by several experts that civil defence organizations should work closely with the Red Cross or Red Crescent Societies, which were ubiquitous and thus played a useful role in disseminating IHL. In many countries, the relations were good and the two played complementary roles. For example, courses for the national first aid certificate were taught by firefighters, who were military personnel with special training.
Another participant said that in his country the civil defence organization was better equipped to cope with disasters because it had government resources at its disposal. On the other hand, the Red Crescent was present on the spot to a greater extent and covered virtually the whole country. The National Society trained first aid workers in cooperation with civil defence. Civil defence took no part in the dissemination of IHL, which was the responsibility of the Society, although he believed it was indispensable for civil defence to become involved in this aspect.
It was noted that in some countries there was confusion among the population regarding the roles of the military and civil defence, even though they were fundamentally different. The situation had improved somewhat with media reports on the assistance provided by civil defence in disasters abroad.
One expert explained that the legal situation in his country before the war had been that civil defence had overall responsibility for assisting the population and one of its components was the Red Cross, which carried out its mission under the direction of civil defence. Cooperation with the ICRC during the conflict had been good and was being pursued with a programme on mines coordinated by civil defence.
Another participant emphasized that each country organized its civil defence structure according to its needs. In his country, in peacetime, civil defence carried out the tasks assigned to it by the government and in time of war it coordinated the work of the Red Cross and non-governmental organizations.
There seemed to be two trends: in eastern Europe, civil defence was becoming less military while in Africa the opposite was true. There, fire brigades, which had given birth to civil defence in most countries, were strongly military: they wore military uniform and carried weapons. That obviously posed problems in the light of discussions at the meeting, especially in regard to peacetime civil defence activities.
In the broad meaning, it was noted, civil defence functions were prevention, prediction and intervention. In order to intervene in disasters, personnel must be well trained, disciplined and used to obeying orders. In order to attenuate the military aspect, civil defence in one expert's country was in the hands of the Ministry of Territorial Administration and all civil defence personnel were seconded to the Ministry of the Interior. Furthermore, in peacetime, they came under the general directorate of civil defence which included an operational service directorate covering civilians who were called up and wished to do their service in the civil defence organization. Training was given in first aid, fire fighting and relief but not soldiering. They were therefore practically civilian. In the countries of the Mahgreb, however, civilians were seconded and given civil defence functions, directly under the interior or territorial ministries. In West Africa, in some countries such as Côte d'Ivoire, the fire brigade carried out civil defence activities and came under the Ministry of Defence. In Mali, Niger, Burkina Faso and Senegal, however, civil defence came under the interior or territorial ministries but its personnel were seconded by the military authorities.
It was finally noted that in Africa, apart from the matter of discipline, in peacetime civil defence activities were undertaken by the armed forces as a mean of occupying them and employing their training and discipline. They retained their military status and continued their military training. In wartime, a way must be found of dissociating the two functions. Perhaps civil defence functions should be demilitarized in Africa.
The Chairman said that the use of armies for civil defence tasks in peacetime was fairly widespread and did not really pose a problem. It was important, however, to distinguish between civil defence and military functions during armed conflicts when there was a risk of confusion.
It was explained that in another country civil defence, under the Ministry of the Interior, played a coordinating role in disaster relief in peacetime. It also coordinated emergency relief in time of war. The way in which civil defence services were perceived depended on the situation in each country. In this country, for example, it was a State body with a humanitarian mission.
Another expert thought that one reason civil defence was perceived as a State body was that it was very well organized, with a clear command and control structure, and was easily recognized. For the United Nations, it was important to be able to receive assistance from governments in this form. In fulfilling its role, it was very useful for civil defence to have clearly distinguishable uniforms.
The Chairman pointed out that one clear distinction between humanitarian non-governmental organizations and State bodies was that the former were financed from private sources and staffed by volunteers, whereas the latter received public finance and were largely staffed by professionals. The discussion had shown that United Nations forces, the Red Cross and Red Crescent, and civil defence often carried out the same type of activity so in order to be able to identify which of them was carrying out a particular activity the issue of the emblem or distinctive sign was a critical factor, bearing in mind that the Red Cross and Red Crescent emblems were also used by the army's medical services. Combining emblems or introducing new emblems would probably only give rise to confusion and diminish the chances of protection. He finally said that the whole issue of armed protection for humanitarian aid was an extremely sensitive and topical issue. The reaction of the Red Cross was prudent, although a distinction had to be drawn between situations where a government authority still existed and those where there was no government structure in place.
One participant indicated that his experience in Rwanda had shown that humanitarian assistance had been placed in two different categories by the Rwandans, one category being UNAMIR and the other all the remaining organizations, irrespective of whether they were United Nations bodies or non-governmental organizations. UNAMIR had benefited from much more favourable treatment.
The previous speaker noted that the conclusion appeared to be that civil defence did not have the same qualms as the Red Cross about utilizing armed protection for humanitarian aid and was perhaps better placed to provide aid where armed protection was necessary.
The Chairman said that the question under discussion was to what extent various tasks, including civil defence ones, were given protection. Humanitarian and civil defence tasks could only be protected with the agreement of the military forces involved and must, in any case, be clearly recognizable. There were two types of reasons for failure to comply with IHL: the first was that structures and discipline had broken down and that the Parties to the conflict were no longer in control of the situation; the second - much more serious - was the refusal by the conflicting Parties to accept the concept of IHL. Sometimes both types of problem were present. There had been several cases in recent conflicts where humanitarian workers and infrastructure had been deliberately attacked. In the second type of problem, only a few refusals to comply sufficed to ensure that IHL was violated and the problem became a political one.
The matter of armed protection for humanitarian services was difficult: should they be protected by the emblem, by arms, or both? The matter was very sensitive and the ICRC was extremely reluctant to admit the use of arms. Sometimes food distribution had taken place under the auspices of humanitarian organizations whereas the food reached distribution points under military escort - clearly the situation was extremely complex and solutions must be sought.
One expert cited the words of President Sommaruga who had said earlier in the year that the use of force against the will of Parties to a conflict, even for valid humanitarian reasons, would necessarily turn humanitarian action into a military operation. Nowadays, there were often anarchical situations in conflicts, as in Albania; small criminal or guerrilla units were operating and ways had to be found of protecting civil defence staff against them. The President of the German Red Cross had stated after the events in Chechnya that he disagreed with President Sommaruga's strict attitude and believed that, in some cases, armed protection had to be sought.
One expert drew attention to the practical implementation of provisions: to take the example of Chechnya, less than a month earlier, President Sommaruga had stated that the ICRC could not work with the armed forces. The Chechen side, however, was unable to guarantee security and the ICRC no longer worked there on such a large scale as it had earlier. So the problem was how to make the Parties fulfil their obligations under IHL.
Another participant said that the question was very sensitive and complex. It was very difficult to envisage civil defence personnel being armed. If they were, there would be great temptation to use the weapons. Armed United Nations and regional organizations such as ECOWAS were engaged in the purely humanitarian task of maintaining order in some countries of Africa but excesses had occurred, for example, in the Central African Republic. He could not agree with the rigid stance adopted by President Sommaruga. A choice had to be made in a realistic manner, as had been done by paying factions in Somalia to allow food supplies to be delivered. He believed that civil defence personnel should not carry weapons but that armed cover might be provided where needed for them to fulfil their function.
One participant said that civil defence groups should not be armed or accompanied by armed escorts as that led to their confusion with irregular armed forces and they risked becoming targets. Naturally, they needed to be protected while carrying out their duties. Civil defence organizations could be protected by international armed forces if necessary, but not by the Parties to the conflict. The armed forces on the same side as the civil defence organizations should protect them, but in Bosnia that had not been the case. In any event, there was a need for civil defence organizations to have armed protection.
The Chairman thought that no final decision regarding security measures could be taken as everything depended on circumstances and how matters progressed. The danger of being armed had already been discussed and the ICRC was very hesitant about the matter although it had not entirely precluded the possibility. Armed protection against banditry could be very useful although there was always a danger that aggression might escalate. For the ICRC, the problem of neutrality would arise if it were escorted by United Nations forces; it was essential that confusion did not occur between the two organizations, whose function was quite different. Imposed armed protection raised other problems as it amounted to armed intervention: various scenarios could be envisaged which might further humanitarian ends but political and humanitarian aims must not be confused.
Two participants wondered whether another additional protocol was needed, enumerating the tasks performed by international humanitarian assistance, to cover non-international conflicts. It should enable the conflicting Parties to authorize foreign governmental and non-governmental institutions to provide such services. They would be identified by the international emblems and, in turn, the conflicting Parties would afford protection. The tasks, not the organizational structure, would receive the protection. Could such a possibility be explored?
On the matter of preparing a new protocol, the Chairman pointed out that present instruments did not exclude armed protection although institutions were reluctant to use it. He warned that the procedure to prepare a new protocol was very long and cumbersome, involving huge negotiation, as national sovereignty was affected. Personally, he did not favour such action but thought that attention should be focused on promoting and implementing existing instruments. He acknowledged that the question of accepting armed escorts was an open one.
One expert considered that the ICRC was confusing two different situations. The subject under discussion was civil defence action which, whether carried out by private or State-run organizations, had structures in place within countries whereas the ICRC was not a State structure. The point at issue was whether national civil defence organizations could have armed protection. The wording of Additional Protocol I implied that the protection could be active. Furthermore, if the ICRC were unable to continue its work, it could withdraw from the country while civil defence structures remained since they were national entities.
The Chairman agreed but said that the problems were similar as protection depended on respect for an emblem borne by organizations carrying out non-military activities. The issue was to what extent military protection could be accepted in order to allow civil defence organizations to perform their tasks, especially where law and order had broken down and no protective signs were respected.
He said it was very clear that there was no simple answer to the problem. The instruments adopted in 1977 concentrated on international armed conflicts while the vast majority of conflicts were now internal. The issue was whether civil defence organizations would be protected in internal conflicts but some of the concepts in the 1977 Protocols were clearly not really applicable to such cases. He wondered whether it was acceptable to have two standards: one regarding civil defence activities in international conflicts and the other in internal conflicts. There must be a certain logical approach. He would increasingly defend the idea that a certain practice had been established to the effect that protection afforded in international conflicts should also apply to internal ones and he felt that there was a certain acceptance among States that that should apply to the civil defence function also.
One expert said that civilians would never be a legal target but that the issue was to ensure that there was a norm to allow the civil defence organizations to perform their tasks. It should be possible to include NGOs to the extent that they fulfilled certain criteria as they carried out the same tasks. The situation which had occurred when the Rwandan authorities had confiscated the equipment and facilities of NGOs and asked them to leave the country should not occur. There should be international standards to guard against such arbitrary nationalization of assets and cessation of functions. If States accepted humanitarian assistance, they should have to allow the organizations supplying it to function without hindrance and, if they were requested to leave the country, their assets should not be confiscated.
Another participant said that the situation regarding civil defence differed in the two types of conflict, especially when the civil defence organization was a State body. Even if it was free to do its work, it would tend to be taken over by the strongest party. It was therefore necessary for civil defence organizations to have the same working conditions whether they were State or private bodies. It was said that the civil defence organization could play its part in non-international armed conflicts. The State had a duty to protect its nationals, especially since the State could impose sanctions on the national territory. IHL could be applied by analogy.
The Chairman pointed out that it was difficult to envisage a State organization, such as a civil defence organization, functioning in a non-international conflict in a part of the country held by a dissident force.
One expert said that, bearing in mind that civil defence organizations were in an inherently dangerous situation and might lose personnel, there were two options: the first was to adopt a coercive approach, providing physical protection, and the second was to provide inducement not to attack them. There seemed to be reasonable agreement among participants that the coercive approach was not the best way forward and the inducement side must be explored. A number of measures therefore had to be adopted to ensure that the antagonist understood the tasks undertaken by the civil defence bodies. First, the civil defence organizations had to be recognizable and, secondly, their role must be understood. The list of tasks set out in Additional Protocol I must also be studied, since several of them could have military connotations. Legal protection was inherent in the Protocol but it had to be publicized.
The Chairman referred to the situation in Rwanda and Burundi where the purpose had been to exterminate populations. It was clear that humanitarian action aimed at allowing people to remain where they were would not be tolerated.
One expert said that it was difficult to think of a basis for civil defence being allowed to perform its work in internal conflicts: it could perhaps be sought in the provisions of Additional Protocol II which implied the right of the civilian population to receive assistance and allowed impartial relief actions to be carried out. Civil defence could be envisaged in that context. Human rights also played a part in that everyone had the right to life.
Wednesday, 2 July, Morning
Opening of the session
Mr. Sandoz (ICRC), Chairman of the session, explained that the plenary session would break up into two groups: Working Group 1 would discuss issues related to the emblem in the broad sense, the identification and recognition of civil defence services and how to guarantee their protection; Working Group 2 would deal with issues related to IHL norms and the measures to be taken for their dissemination. The Groups would then present their conclusions to the plenary session.
Wednesday 2 July 1997, Morning session, second part
Working Group 1: Issues relative to the emblem.
The Working Group met at 9.15 a.m. on Wednesday 2 July 1997. Four main issues were discussed. For conclusions, see the report of the Working Group chairman to plenary.
1. Is the CD emblem (referred to in the Protocol as "the international distinctive sign") known, used and efficient?
Dr. Jakovljevic, Chairman of the Working Group, said that some countries were using the emblem with additions, which should not be done. Countries not Parties to Additional Protocol I were not bound to use the CD emblem as identification, but if they did use the emblem they must also apply the provisions of Additional Protocol I. France, for example, was not a Party to the Protocol but found it valuable to comply with the law and practice.
Several participants said that if the emblem was used, the conditions must be complied with. They would recommend that ICDO should use the international emblem rather than its present identifying sign of two red stripes.
In contrast, the Chairman felt that ICDO could retain its own identification sign but should recommend to its members that they use the international emblem.It was also suggested that ICDO should disseminate information on the international emblem and associated rules to all signatories to the 1949 Geneva Conventions which were not Parties to Additional Protocol I. Mention was also made of the possibility for United Nations agencies to use the emblem.
2. Is the emblem protected by law?
The Chairman proposed that the meeting should recommend that governments enact laws relating to the correct use of the civil defence emblem and protection when it was displayed. He said it was important to decide who had the right to use the emblem; organizations should have that right only when performing civil defence activities. National legislation could take a number of forms as appropriate and could be any legal act that was valid and legally binding in the country concerned. If States not Parties to Additional Protocol I wished to use the emblem they must enact national legislation providing sanctions for misuse.
One expert stressed that dissemination must first be carried out so that countries were aware of the significance of the emblem. Domestic laws could then be enacted. Governments could enact laws imposing sanctions on the misuse or disregard of the civil defence emblem in non-international conflicts but a means must be found to impose sanctions in international conflicts. That could be by agreement between the Parties.
Another participant said that in his country the two Additional Protocols were directly enforceable but the emblem was not used by all civil defence units, most of which had their own emblems. In connection with the third point which would be discussed later, he noted that punishment for misuse was very difficult if several private or public organizations used other emblems or identification.
It was mentioned that Article 66(8) of Additional Protocol I made it incumbent on Parties to take the measures necessary to supervise the display of the international distinctive sign of civil defence and to prevent and repress any misuse thereof. He suggested that Parties should be reminded of that obligation.
The Chairman thought that the ICRC might be asked to bring the matter before the next International Conference of the Red Cross and Red Crescent. A model law on the Red Cross and Red Crescent emblem already existed.
3. What are the consequences of the use of another emblem?
The Chairman noted that some civil defence organizations used the Red Cross and Red Crescent emblem; it was clear to him that that was permissible for medical services connected with civil defence tasks but not for other civil defence work. States which had acceded to Additional Protocol I should use the international emblem but he wondered whether civil defence organizations which had other emblems or identifying marks should be allowed to display them also. He thought that civil defence authorities could be recommended to use one or the other.
One expert replied that if States had entered a reservation on the subject, it might be possible. He stressed that the civil defence emblem should be used alone, not linked to another. Two emblems could be used side by side provided they were not joined. He advised that too many emblems could lead to confusion.
Disagreement was voiced out by another participant : The intention of Additional Protocol I was to protect activities aimed at providing succour to civilians. Some countries had very long-standing civil defence organizations, which were entirely voluntary and independently funded, and which had their own emblems to which they were strongly attached. Some would probably refuse to wear only the international emblem, especially as their own emblem was recognized in their countries. The solution would be to allow display of both. National organizations which performed worthy civil defence tasks should be allowed to wear the civil defence emblem in wartime. It was essential that easily visible clothing be worn in the performance of duties, and that it bear the appropriate emblem or emblems.
Another expert said that use of the Red Cross emblem for certain services was permitted under Additional Protocol I but that use of civil defence emblems other than the international one would require notification to the other warring Party or Parties.
It was reported that in Bosnia other signs, including the Red Cross emblem, were placed inside the civil defence emblem. This should not be done but some subservices signs could be included.
The Chairman said that the civil defence authorities should provide overall control of the matter. Control was important to ensure that the organizations did not display the civil defence emblem when performing other tasks. Anarchy must be avoided.
One expert said that there was no international civil defence command and control structure. National authorities should perform that function. He was not against international guidelines but warned that, in reality, the emblem would undoubtedly be misused. He agreed that there should not be a plethora of similar sized signs but was adamant that others could be displayed in addition to the international civil defence one, which should be larger. Any attempt to proscribe the use of different emblems might result in refusal by States to accede to Additional Protocol I. The aims of the Protocol must be borne in mind. Signs must be clear and, in wartime, people learnt very quickly which ones were effective. The matter should be dealt with flexibly although a strong recommendation could be made to use the international emblem
One expert said that consideration should be given to the fact that many countries already had signs that were well-known, even abroad, and produced a feeling of safety. Many voluntary workers identified very closely with their own emblem. It should be agreed that the international emblem would be displayed in addition.
The Chairman agreed that it was dangerous if there was a proliferation of signs but confirmed that States could make reservations on the matter.
4. What are the technical possibilities of improving the protective use of the emblem?
One expert said that considerable study had been carried out in regard to better and more sophisticated means of recognition for the Red Cross and Red Crescent emblem, including infrared-visible materials. The same technical means could be used for the civil defence emblem. Governments and international organizations should be encouraged to look for such new techniques and measures.
The Chairman suggested that the ICRC could be asked to consider such possibilities for the civil defence emblem in line with those under study for the Red Cross emblem; in other words, to look for new techniques and recommend them to Governments.
Another participant suggested that ICDO and the ICRC should exchange information on the subject and that States should be invited to look for new technical means to identify the civil defence emblem. Certain international organizations such as ITU were already working on the topic. ICDO should be the lead organization and the ICRC, which did not represent civil defence organizations, could give technical support.
Working Group 2: Issues related to IHL norms dissemination and the emblem
The Working Group met at 9.15 a.m. on Wednesday, 2 July 1997. The main issues discussed were those relating to IHL norms. For the conclusions see the report to the plenary by the Working Group's chairman.
Mr. Sandoz (ICRC), Chairman of the Working Group, emphasized that, in order to be protected, civil defence had to be recognized. The discussion in plenary had shown that the international emblem was not sufficiently well known and further efforts had to be made to disseminate it, possibly through appropriate domestic legislation. The problem of protection and possible violations of IHL norms was most acute in conflict situations, but the ground had to be prepared in peacetime.
One expert said that in his country the national civil defence emblem, composed of a yellow triangle on a black background, was relatively well known and there were few problems when it was used internally, but in conflict situations the international emblem was not as well known.
The Chairman expressed the view that the international emblem would be weakened if a plethora of national emblems was used together with it in conflict situations.
A participant indicated that a variety of signs existed: occasionally they were variations on the international emblem or combined the latter with a national emblem. The ICDO's objective was to promote use of the emblem prescribed in Additional Protocol I.
It was mentioned that ICDO members were bound to respect the Organization's Constitution but did not have to follow guidelines on which emblem to use. It was agreed that the ICDO could make further efforts in this regard.
Another expert wondered why uniformity was considered desirable. He did not see any reason why countries could not add their own emblem to the international emblem; moreover, a national emblem was useful for fund-raising and publicity.
The previous speaker agreed that there might be advantages in adding the national emblem to the international one, but in some instances the international emblem was completely obliterated by the national sign.
Another participant emphasized that the national and international emblems should be indissociable: the former had its role to play at the national level, but the latter was an international rallying point.
One expert suggested that civil defence draw on the experience gained in use of the Red Cross and Red Crescent emblems. He did not advocate use of the international and national civil defence emblems together and spoke in favour of using a single internationally recognized emblem. The ICDO should broaden its membership so as to assure international recognition of the emblem.
The Chairman emphasized that, if a country was attacked, the emblem used, even if it was a national one, must be immediately recognizable. The emblem was mainly used at the national level because it was rare for national civil defence organizations to go directly to the aid of others in time of war, which was when the impact of the sign was the most critical.
One expert considered that the issue was twofold: firstly, recognition of the emblem had to be promoted among countries parties to Additional Protocol I, and secondly the meaning of the emblem had to be made clear to the forces of States that were not parties but were taking part in peacekeeping operations and humanitarian assistance in non-international armed conflicts. He recommended that the United Nations Department of Peacekeeping Operations or the Department of Humanitarian Affairs take steps to ensure that troops from countries participating in peacekeeping operations had been fully informed of the signs they were likely to encounter in the field.
One expert said that in his country civil defence usually used its own emblem at the national level, although it occasionally also displayed the international emblem. He felt that States parties to Additional Protocol I were reluctant to use the international emblem because it was not sufficiently well known so ICDO should make efforts to remedy this situation.
The Chairman explained some of the background to the recognition and use of the Red Cross and Red Crescent emblems. He added that, as some civil defence organizations carried out tasks that were not specified in Article 61, use of the emblem posed certain problems. This issue was particularly delicate in conflict situations. In his understanding the emblem could be used in peacetime when carrying out tasks not listed in Article 61, but in conflict situations, for the purposes of protection, it could only be used for those tasks enumerated.
One expert said that misuse of the civil defence emblem should be subject to penalties, as was the case for the Red Cross and Red Crescent emblems, and the considerable experience of the ICRC in preventing misuse should be utilized. It was the responsibility of governments to propose legislation to prevent misuse at the national level.
The Chairman wondered to what extent national legislation could afford sufficient protection against misuse of the emblem in conflict situations.
One expert pointed out that civil defence teams sent abroad were usually assigned specific tasks or areas so the surrounding population was aware they were not combatants. In a highly conflictual situation, the decision to send teams abroad would have to be the result of a political decision.
A participant wondered whether the ICRC and ICDO could recommend strongly a closer relationship between the civil defence organizations and National Red Cross and Red Crescent Societies, particularly on the subject of dissemination of the respective emblems and symbols and the rules of IHL. Their aims in that context were the same and resources could perhaps be pooled. Secondly, on the matter of dissemination, especially regarding the use of the emblem, the difference must be borne in mind between the Red Cross and Red Crescent protective emblem on the one hand and the civil defence emblem on the other: the former was used without any possibility of confusion regarding the use of weapons. As the Chairman had said, the ICRC was extremely hesitant even about the use of armed escorts; in contrast, Protocol I permitted the use of weapons for civil defence personnel and the use of a protective emblem for civil defence activities was therefore essential in order to avoid confusion with the armed forces.
The Chairman concluded that national legislation should specify civil defence tasks in times of war and peace and the use of the international emblem. It should also provide penalties for misuse of the emblem. The emblem's meaning and implications should be recognized by all the forces involved. Lastly, the information put out by national civil defence structures should describe the role played by civil defence in war and peace and show the emblem.
Wednesday 2 July 1997, Morning session, third (last) part
Summary of working group discussions
Dr Jakovljevic summarized the conclusions and recommendations of the working group on the emblem, which he had chaired, as follows:
-No additions should be made to the emblem; Governments which had made additions should be requested not to do so and to alter their relevant legislation accordingly.
-If States not party to Protocol I wished to use the emblem they should be allowed to do so provided that they accepted the whole of the chapter on civil defence in the Protocol.
-It was very important that the civil defence emblem was disseminated within the general context of the rules on civil defence and the framework of IHL. The question had been raised as to whether ICDO should also adopt the international emblem: views had been divided, some thought that the international emblem should replace the existing two red stripes used by ICDO while others opined that ICDO should be able to retain its long-standing identifying marks but should request its members to use the international emblem.
-The great importance of adopting appropriate national legislation regulating the correct use of the emblem and imposing sanctions on incorrect use and abuses was stressed and, in that context, attention was drawn to the obligation placed on Parties in Article 66 of Protocol I. It was agreed that States Party to the Protocol should be reminded of that obligation. National legislation might be modelled on that pertaining to the Red Cross and Red Crescent emblem.
-The use by personnel of other emblems in addition to the civil defence international emblem was discussed at length. It was clear that medical services operated by civil defence organizations could claim protection by displaying either the Red Cross and Red Crescent emblem or the international civil defence emblem; other emblems would not give protection under IHL. After considerable discussion, the view prevailed that private organizations working officially in the civil defence field should not be forbidden to use their own signs or symbols, which were often a long-standing and important means of identification and were recognized nationally, in addition to the international emblem. It should be made clear, however, that only the international civil defence emblem provided protection. The civil defence authorities, furthermore, should ensure that the international emblem was used only when justified by the activities undertaken.
-Attention was drawn to the fact that the international emblem should also be displayed on buildings, equipment and other facilities which were entitled to protection under Protocol I.
-On the question of improving the visibility and recognition of the protective emblem, it was agreed to invite countries to adopt relevant measures and conclude agreements as specified in Protocol I and to request the ICRC, which had done considerable work on the subject in regard to its own emblem, to exchange information with ICDO on the subject. Proposals should be put forward to other concerned international bodies and forums in that regard.
Mr Sandoz (ICRC) said that there had been some inevitable overlapping of discussions in the two working groups; he summarized the conclusions and recommendations of the working group on issues related to IHL norms, dissemination and the emblem, which he had chaired, as follows:
*It was important that civil defence rules be known and complied with and that the international emblem be recognized.
*On the question of whether the international emblem should be the only one to be used in peacetime, it had been stated that existing symbols and identification marks aroused strong feelings of identity among the members of certain organizations. The problem that civil defence activities in peacetime were wider than those entitled to protection had been raised and care must be exercised to ensure that in wartime the emblem was borne only in the performance of activities entitled to protection under Protocol I.
*It was important that national legislation be clear on the protection afforded in wartime and that sanctions be imposed on violations of IHL included the field of civil defence protection.
*Public awareness of the rules on civil defence activities should be increased;
*Cooperation between civil defence organizations was also desirable: there should be an exchange of ideas between countries in regard to promotional activities. ICDO could provide a dynamic link.
*On the question of compliance with the rules by armed forces, stress had been placed on the importance of including dissemination of the rules and the meaning of the emblem in general dissemination activities by States. Emphasis had also been placed on proper knowledge of the rules and emblem by United Nations forces: in that context, the United Nations Department of Peacekeeping Operations could have a role to play in reminding States providing peacekeeping forces of their responsibilities.
General conclusions and follow-up
Mr Gondrand (ICDO) thanked all participants for their valuable input - it was indeed high time that the subject was discussed, twenty years after the signing of Protocol I. ICDO would take the discussions into consideration with a view to submitting to its members proposals for action on the dissemination of IHL. Its members would have the opportunity during the current year to give their views and then, at the ICDO General Assembly in 1998, to adopt a resolution on the subject. The suggestions would also be submitted to the World Civil Defence Conference to be held in conjunction with that General Assembly.
The dissemination of IHL relating to civil defence was important for ICDO as a unifying factor and rallying point for its members, which had little in common, and as a means for ICDO to gain universality and greater recognition with States not yet members. Work in the normative sector and structuring of civil defence services through guidelines would be of great value. He had discussed at length with the Secretary General of ICDO the adoption of conditions for the recognition of civil defence services in current and potential member States and thought that progress would be made on the subject in 1998. He deemed it necessary in that context for ICDO to have a federal structure and common points of contact with its members. The task would entail a long-term effort and constitute a follow-up to the resolution on the subject adopted at the 26th International Conference of the Red Cross and Red Crescent in 1995. In working with the Red Cross and Red Crescent Movement, ICDO would benefit from its experience in disseminating IHL and - he hoped - be able to follow to some degree the example set by the ICRC and the Federation in drawing up guidelines for National Societies.
He welcomed the cooperation which was being established with the ICRC and trusted that it would assist in furthering the aims of ICDO. Finally, he thanked Dr Jakovljevic and Mr Sandoz warmly for their expertise and valuable contribution to the meeting.
Dr. Jakovljevic, after thanking Mr Sandoz for providing very rich material for further reflection in the conclusions he had outlined, stressed several points: first, the question was raised on the agenda of whether the rules on civil defence were sufficiently realistic and had retained their validity in the context of modern wars. The experts' conclusion was that the rules remained valid and that efforts must be made to apply them. He therefore considered that emphasis should be placed on the "reaffirmation" of those rules to banish any doubt and ensure that they remained the basis for further action. Secondly, he thought there was agreement that the rules of Article 61, in contrast to those on the Red Cross and Red Crescent services, were not well enough known, even in civil defence circles. So stress should be placed on the need for wider and more determined dissemination. The action of the Red Cross and Red Crescent Movement regarding dissemination was well known but other specialized institution which worked in that field, such as the San Remo Institute which held courses for military personnel in particular, should be encouraged to pay greater attention to the rules regarding civil defence activities for the protection of victims. Finally, he thought that a few participants had mentioned that some States not party to Protocol I had agreed, for humanitarian reasons, to apply and include in national legislation the rules set out in the Protocol: that tendency should be encouraged.
Mr Sandoz (ICRC) concluded that the meeting had been extremely valuable in permitting an exchange of ideas between experts having very varied experience in theory and in practice. Further study of many of the topics raised was obviously required and should prove fruitful.
Mr Sandoz (ICRC), after highlighting that the experts had attended the meeting in their personal capacities, stressed that the fields of expertise had been varied and complementary despite the small size of the group. He summed up the deliberations and findings of the meeting: [this is reflected in the Executive Summary, to be found at the beginning of the present report]
After the customary exchange of courtesies, the meeting rose at 12.20 p.m. on
Wednesday 2 July 1997.
