Author: Geoffrey Tasimba Maenzanise

Africa currently faces an unprecedented displacement crisis. The convergence of protracted armed conflicts and the rising threat of non-State armed groups (NSAGs) has generated staggering levels of internal displacement (33 million as of 2024, in Africa alone). In the first half of 2025, conflicts in the DRC, Sudan, and South Sudan drove nearly half of all new displacements worldwide. Within this tumult, displaced children remain highly vulnerable to recruitment.

While the global humanitarian system relies heavily on the non-binding 1998 UN Guiding Principles on Internal Displacement, the African Union (AU) has constructed a theoretically superior normative framework. This framework functions as a “double-lock” mechanism, forged through the intersection of two landmark instruments: the Kampala Convention and the African Charter on the Rights and Welfare of the Child. While these two instruments create a general double-lock protecting a wide array of displaced children’s rights, this analysis focuses on how they specifically intersect to curtail one of the continent’s most severe violations: child military recruitment.

The First Lock: The Kampala Convention’s Operational Mandate

The first lock is the Kampala Convention, the world’s only legally binding regional instrument specifically governing internal displacement.

Crucially, Article 9(2)(c) mandates that States Parties “respect and ensure respect for the principles of humanity and human dignity of internally displaced persons.” For children, this provision is the operational linchpin, effectively mandating that internally displaced person (IDP) camps must function as zones of safety rather than recruitment grounds. Under the principle of effet utile^[1]— a standard of treaty interpretation affirmed by the International Court of Justice — maintaining the civilian and humanitarian character of an IDP settlement requires the proactive exclusion of armed elements and obliges governments to provide physical security. When camps are legally recognized and properly guarded, it prevents armed actors from infiltrating these vulnerable spaces and severs a primary supply line for forced conscription.

However, the Convention’s most radical innovation lies in its direct address to non-State actors. Recognizing the reality of modern African warfare, Article 7(5) explicitly prohibits members of armed groups from “recruiting children or requiring or permitting them to take part in hostilities.” By piercing the veil of State-centric international law, the Kampala Convention clarifies that humanitarian duties are absolute, binding insurgents even if they are not treaty signatories while precluding them from claiming legitimacy as a reward for compliance (AU Explanatory Note on the Kampala Convention, p. 3).

The Second Lock: The ACRWC’s ‘Straight-18’ Standard

While the Kampala Convention emphasizes the protected status of humanitarian locations (such as IDP camps), the African Charter on the Rights and Welfare of the Child (ACRWC) affirms the protected status of children. The ACRWC was adopted to address the specific socio-cultural realities of the African child. By confronting practices such as cultural rites of passage that prematurely designate older adolescents as adults —thereby normalizing their voluntary recruitment into local militias—this Charter sets a protection standard significantly higher than its global counterpart.

The distinction is clearest in the prohibition of child soldiers. The global UN Convention on the Rights of the Child (CRC) and its Optional Protocol contain a “grey zone” that allows for the voluntary recruitment of children between 16 and 18. But in the coercive environment of a conflict zone, volunteerism is often a fiction used to exploit minors.

In sharp contrast, Article 22 of the ACRWC establishes an absolute “Straight-18” standard. It unequivocally prohibits the recruitment or direct participation of any child, defined as a person under 18 years of age. Combined with the Kampala Convention, this creates a rigorous legal shield: the ACRWC removes the child’s legal capacity to “volunteer,” while the Kampala Convention criminalizes the act of recruitment by any actor, State or non-State.

The Implementation Gap: Rust in the Mechanism

In reality, a legal lock is only as secure as the political will to engage its mechanism. As Biegon and Swart note in their critical analysis of the framework, “the express requirement for domestication in the Kampala Convention recognizes the fact that the full and proper implementation of the Convention is crucial to the advancement of the protection” of displaced persons.^[2] Yet, the chasm between this robust normative architecture and the ground reality is highlighted by domestication deficits across the continent. As of late 2024, 34 of the African Union’s 55 Member States have ratified the instrument, leaving a significant minority outside its binding architecture. Notable absences include conflict-affected States like Sudan, which hosts the world’s largest displacement crisis yet remains outside the treaty’s fold. Uneven ratification leaves the Double-Lock dormant in critical jurisdictions. According to 2025 tracking, only three of the 34 ratifying States had successfully enacted standalone legislation. As of last month, Nigeria’s domestication bill pushed that number to four.

While these deficits affect all IDP rights generally, they have a devastating impact specifically on recruitment. Without domestic laws operationalizing the Kampala Convention, IDP camps, for instance, lack statutory security protocols and the formal civilian administration to actively prevent camp militarization. 

Ethiopia, despite hosting the AU, ratified the Kampala Convention with significant reservations that weaken the mechanism. The government entered a reservation on Article 12, redefining compensation for displacement as discretionary “assistance” rather than a legal right to remedy.  Furthermore, Ethiopia reserved on Article 22 (Dispute Settlement), effectively insulating the State from regional judicial oversight regarding its IDP policies. This prevents the African Court from adjudicating violations under this treaty, weakening the accountability loop.

Similarly, Nigeria has struggled for over a decade to enact a dedicated legal framework for internal displacement. Although the Kampala Convention Domestication Bill was finally signed into law in March 2026, delayed presidential assent had left a critical protection gap.  In the interim, protection relied on the general Child Rights Act (2003), a fundamentally State-centric framework that fails to explicitly prohibit recruitment by non-State armed groups. This legislative fragmentation has created a void that groups like the Civilian Joint Task Force (CJTF) exploit to recruit children.

Meanwhile, Mozambique has opted for a policy framework rather than a legislative one to manage its internal displacement crisis. While policies articulate responsibilities, they lack the enforceability of hard law.

Conclusion: Turning the Key

The imposition of non-State actor obligations and the Straight-18 rule are pioneering developments that outpace global standards. However, paper protections cannot shield a child from recruitment. To operationalize this framework, the legal community must pursue strategic litigation and lobby States to withdraw reservations that act as rust in the mechanism. The Double-Lock exists; African jurists must now engage the mechanism.

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^[1] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70, at p. 126, para. 134.

^[2] J. Biegon and S. Swart, “The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa,” African Yearbook on International Humanitarian Law 2009/2010 (Cape Town: Juta), 20-42, at 39.

Author: Itumo Goodness Sochima

Africa represents the fastest-growing market for military drones, with drone purchases quickly outpacing lawmaking. From Morocco’s imports of Turkish Bayraktar TB2s to Nigeria’s imports of Chinese-made Wing Loong IIs, African countries are acquiring drones faster than their governments can regulate them.

Unlike traditional arms deals, the transfer of armed drones, also known as Unmanned Aerial Vehicles (UAV), often comes with little to no oversight, conditions, or accountability. This often occurs because exporters are not signatories to agreements like the Arms Trade Treaty (ATT). 

Africa’s rapid acquisition of drones without any form of regulation, whether central or domestic, poses risk of violation of International Humanitarian Law (IHL) by importers. This calls for stronger international regulation, oversight and end-use monitoring.

End-Use Monitoring and Adherence to Arms Transfer Policies

The use of Turkish Bayraktar drones in Libya in 2020 showed the military value of drones and led to at least 15 bilateral drone acquisition deals across Africa. While Indigenous production (i.e. production that takes place on the African continent) now accounts for about 12% of the market, the vast majority of drones are imported from outside the continent.

It is the duty of both importers and exporters to ensure that this trade is done in a manner that complies with international humanitarian law. This can be achieved through the implementation of End- User Certificates (EUC) that regulate the terms of use, require possible inspections, and prohibit resale without consent from the exporters. 

The US is known for its strict End User Agreements, as mandated by Arms Export Control Act (AECA), and has only recently started selling drones to Africa. As a result, many African countries have turned to China for cheaper drones and a “No questions asked” export policy. China, despite its international legal obligations, is known for its sale of drones without stringent rules. This means that for African countries purchasing drones from China, there is no end-user agreement. Turkey, another major drones exporter, imposes similarly minimal end-use requirements.

South Africa is the only African country with a body like the  National Conventional Arms Control Committee (NCACC), which considers the impact of exported weapons on human rights and requires an End User Certificate (EUC) before transfer. However, a 2024 Open Secrets reported that the UAE and Saudi Arabia have refused inspection from South Africa after receiving weapons. This exposes the fragility of compliance once ownership changes hands. 

Across Africa, a unified regulation on drone transfers is nonexistent. Some countries in Africa demand permits and licenses. Others don’t require anything during transfers. Meanwhile, the pace of proliferation and acquisition surpasses legal regulations. In 2024 there were over 484 drone strikes in Africa. Mali recorded over 17 civilian deaths; reports on Burkina Faso show the death of over 100 civilians; and most recently, reports by BBC News show that a November drone strike in Sudan killed over 40 civilians attending a funeral. These killings of civilians continue to call for strict regulation of the use of drones. 

Even  States who have attempted to introduce regulation do so through negotiation via ad hoc or bilateral agreements, which usually have a weak binding effect. 

Legal Framework for the Sale or Transfer of Drones

Under Common Article 1 of the Geneva Conventions, an obligation is placed on states to “ensure respect” for the Conventions. This implies that States must refrain from exporting arms when they have reason to believe that the weapons will be used to violate IHL. Furthermore, Articles 16 and 41 of the Draft Articles on State Responsibility prohibits States from knowingly aiding or assisting another in committing an internationally wrongful act. This principle extends to drone exports, as knowledge of IHL violations should serve as a deterrence to export. 

1. The Arms Trade Treaty

The Arms Trade Treaty (ATT) is a global treaty that regulates the sale of conventional weapons. It ensure that weapons sold are not use to commit genocide, war crimes etc. it basically ensures that the is transparency and accountability in the sale of weapons across states. The Africa Union has affirmed its support for the ATT, and 25 African countries are State parties to the ATT while over 15 African countries are signatories but yet to ratify. 

The scope of the weapons covered by the ATT are set out in Article 2 of the Treaty. The Treaty covers conventional weapons but does not explicitly mention drones. That said, it can be interpreted to cover drones because they fall under the category of “combat Aircraft.”

Article 6(3) of the treaty prohibits the transfer of weapons with knowledge that they would be used in the commission of atrocity crimes. This places a high evidentiary bar as the exporting State could claim plausible deniability. 

Article 14 provides for the enforcement of the treaty in signatory states. However, it does this vaguely, without stating how to enforce the treaty in detail (e.g., sanctions, international enforcement mechanisms),  leaving enforcement to state discretion.

2. Arms Embargoes

Arms embargoes are a form of sanction that restrict the sale of weapons. Often, sanctions are imposed to compel states to change their actions in the interest of international peace and security. However, its deterrent effect remains limited. Sanctioned states often find alternative routes such as illicit trafficking or smuggling. In other cases, third States openly violate arms embargoes. For example, Iran and the UAE have been accused of transferring weapons to Sudan while the country was under sanction. 

3. Missile Technology Control Regime (MTCR)

The MTCR specifically includes UAV capable of delivering a payload of at least 500 kg to a range of 300 km in Category 1 of its list of weapons. Its major aim as it concerns drones is to prevent proliferation of drones of mass destruction. So far, South Africa is the sole African signatory. This treaty is not binding on its members, and many key importing and producing countries are not signatories.

4. ECOWAS Convention on Small and Light Weapons (2006)

The ECOWAS Convention, which governs its 15 West African member states, also establishes mechanisms to control the transfer of small arms, but does not extend its scope to cover weapon systems such as drones.

Conclusion

The rapid sale and proliferation of drones continues to expose a legal gap in Africa. A regional framework is needed to ensure exporters impose strict end-use controls, while importers keep to their end of the bargain. Existing regimes like the ATT and MTCR remain too weak and vague to address the legal gap. South Africa’s regulatory body is a start for the continent, but it stands alone. The AU and ECOWAS must therefore work to expand their arms-control mandates to include drones. These regional bodies can develop drone use and transfer protocols that would harmonize licensing, mandate end use verification, and create a compliance body that manages acquisition and deployment.

Subsequent treaties should also be drafted with the evolution of technology in mind, to cover future weapons. Grounding such reforms in Article 36 of Additional Protocol I, would ensure reviews before acquisition. Only then can Africa prevent drones from becoming tools of unchecked warfare.

Author: Itumo Goodness Sochima

Around the city of El Fasher, an earthen wall built by the Rapid Support Forces (RSF) had stood between civilians and survival. On one side lies food, water, and humanitarian supplies. On the other, civilians are trapped and starving, victims of what the United Nations describe as a catastrophic hunger crisis. 

When, after 18 months of siege, the RSF captured El Fasher, the atrocities only continued, with murder, rape and torture of civilians committed at a horrific scale. Yale researchers have revealed over 70 burial mounds in the land surrounding El Fasher. And while the RSF has now agreed to a humanitarian ceasefire, the SAF has refused to comply with the same if the RSF does not relinquish its hold on major cities. Many civilians have fled the city since the takeover, but over 100,000 people may still be trapped within its walls. 

While civilians’ immediate humanitarian needs must be addressed, it bears considering the challenges to accountability looking forward.

The Legality of Siege and the Prohibition on Starvation 

Siege starvation is not a novel concept in warfare. It means that a particular party to war encloses an area, reducing access to food, water, humanitarian aid, and medical supplies, thereby cutting off essential resources to the enclosed area. A siege can also manifest in destroying civilian structures that provide basic goods. The aim is to weaken the besieged party and pressure them to surrender. Siege starvation may also have other aims, such as to displace or kill a given population forcibly. When such tactics lead to mass hunger, one may label the situation ‘siege starvation.’ 

Under international law, one principle remains consistent: starvation must never be used as a weapon of war. This position of the law aims at preserving the principles of International Humanitarian Law (IHL), including proportionality, distinction, and precautions in attack, as provided for under Additional Protocol I in Article 52(2), Article 51(5)(b), and Article 57, respectively. 

The El Fasher Siege

International Humanitarian Law criminalizes what is happening in the enclosed El Fasher, Sudan. For more than 500 days, El Fasher has been under siege. This siege is a result of a war centered on a power tussle since April 2023 between the RSF and the Sudanese Armed Forces. The war has had catastrophic effects on civilian life, especially in El Fasher, Darfur’s capital, where water plants have been attacked, hospitals destroyed, and humanitarian access cut off. This left over 600,000 people, half of them children, in hunger. 

Starvation is prohibited under several international laws including: Customary International Humanitarian Law, Rule 53, Rule 55, Rule 56, Rule 129., as well as Rome Statute Article 8(2)(e)(xix), as amended in 2019. 

Legal Loopholes and Challenges to Accountability 

1.  The Challenge of Proving Intent 

The law illustrates that starvation should not be weaponized against civilians. However, where this occurs, it must be proved that the warring party intended to target civilians. This is the Mens rea for war crimes as provided in Article 8 (2) (b) (xxv) of Elements of Crimes. 

This position of the law creates a loophole for the RSF to claim that restrictions targeted enemy fighters, that infrastructure was a military objective, or that deprivation resulted from logistical collapse rather than deliberate policy. 

2.  Lack of Precedent

Even with the classification of starvation as a war crime in Non-International Armed Conflict, factors like lack of precedent still pose challenges as there has been no standalone trial for starvation as a war crime. The war crime of starvation has never been prosecuted in an international court on its own, only as part of around 20 other war crimes cases. In November, 2024 a warrant was issued for the arrest of Prime Minister Netanyahu and 3 others for war crimes in Palestine. However, this envisaged groundbreaking precedent was challenged by Israel’s lack of acceptance of ICC’s jurisdiction. This challenges the international community in terms of accountability, especially in cities like El Fasher, which is currently under siege. 

3.  Non-Ratification and Enforcement Gaps 

The Rome Statute of the ICC is built in a way that the first signatories are not bound to further amendments, such as Article 8 of the Statute. The amendment of the Article is only applicable to the states that have ratified and accepted the amendments made. 

Sudan has not ratified the Rome Statute, or its amendments. This poses no challenge for North Darfur. Because of the United Nations Security Council Referral in 2005 under Article 13 of the Rome Statute, the International Criminal Court has jurisdiction over the situation in Darfur. 

Another issue is the lack of enforcement bodies. For example, UNSC Resolution 2417 (2018) is a resolution that condemns starvation as a weapon of war. Although binding on member states, it lacks enforcement agencies, especially when it comes to non-state armed groups, in this case the RSF.

4. Challenge in Individual Responsibility

The Rome Statute concentrates on individual perpetrators of war crimes. It is difficult to identify the chain of command in a non-state armed group like RSF. Especially, because even though the leader is identifiable as Mohamed Hamdan Dagalo, there is a lack of transparency in the actual chain of command on the battlefield, as the RSF is only loosely organized.

If this gap in accountability remains, cities like El Fasher and other warring parties will continue to face war crimes like siege starvation, as lack of redress or accountability encourages the contravention of these laws. Structuring the international community accountability framework to address this war crime, would not only serve justice to over 250,000 people who endured the unimaginable but would also prevent future derogation as well as reaffirm the world’s commitment to restoring humanity.

Author: Berhanu Bayley Feleke

The use of starvation as a method of warfare has wrought devastating consequences for civilians in African conflicts, and it only promises to get worse. In El Fasher, Sudan, siege-induced starvation has threatened the lives of about six thousand children. Looking to future African conflicts, import dependency, high rates of subsistence farming and challenges to humanitarian aid access make starvation a serious threat. And with climate change, the tactic of starvation in future conflicts will inflict even more tragic suffering.

I. Starvation under International Humanitarian Law (IHL)

Starvation as a weapon is a broad concept that goes beyond causing suffering or death denying food. It also includes attacks on objects indispensable for survival, such as food, water and agricultural resources (Art. 54 of Additional Protocol I and Art. 14 of Additional Protocol II of the four Geneva Conventions). Under these provisions, parties to a conflict are prohibited from using starvation as a method to annihilate or weaken a civilian population. This prohibition is a rule of customary international law, binding in both international armed conflicts and non-international armed conflicts.  

II. Risk Multipliers: Import Dependency, Subsistence Farming and Challenges to Humanitarian Aid Access

Although Africa possesses 60% of the world’s arable land, it remains the most food-insecure continent, with a high level of food import dependency. Around 60% of Africans rely on subsistence farming.  Though Africa holds untapped agricultural potential, paradoxically, it has been obliged to spend $ 60 billion annually on food importation. By 2030, it is estimated that 291 million people could be chronically undernourished in Africa.

Given the prevalence of subsistence agriculture, high reliance on food imports and food insecurity across the continent, humanitarian aid is often required to fill the gap. However, humanitarian aid does not satisfy the overwhelming food demand in Africa because of funding cuts, violence, corruption and supply chain failures. In Sudan, the humanitarian situation has deteriorated sharply with more than 30 million people (64 % of the population) affected. The USAID funding cuts have exacerbated the problem. Following the suspension of US foreign aid, about 80% of the 1,460 soup kitchens across Sudan were shut down despite the dire humanitarian situation in places like El Fasher, which have been targeted by siege.

In this fragile context, the deliberate use of civilian starvation as a weapon of war dramatically worsens existing hunger and malnutrition. It is just like pouring fuel on the fire; intensifying pre-existing food insecurity made worse by challenges to the humanitarian sector. 

For instance, both the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF), have employed starvation as a weapon. In El Fasher, the RSF has sieged and blocked supply lines (for more than a year) where health facilities and mobile nutrition have been suspended. In this incident, about 6,000 children face “Severe Acute Malnutrition (SAM) and an exponentially high risk of death.”  The international community has done little in practice to address the starvation crimes in Sudan. Moreover, there is still no precedent where perpetrators of starvation crime have been charged and prosecuted, despite the effort of the International Criminal Court issuing the first ever arrest warrant against the high military officials of Hamas and Israel. 

III. Climate Change and Future Risks 

Climate change coupled with rapid population growth, land degradation and weak infrastructure threaten food security in Africa. Climate change severely impacts agricultural productivity, including crops, livestock, supply chains, plants and animals. 

By 2040, Africa is projected to exceed the 1.5°C warming threshold limit set by the Paris Agreement, a shift that is expected to exacerbate drought, disrupt agricultural systems and heighten the risk of widespread food insecurity and starvation throughout the continent.  In particular, the Sahel region is highly prone to drought and subsequent decrease of agricultural production. Climate change triggered by an increase in greenhouse gasses would worsen the already existing food insecurity in the Sub-Saharan Region (see here also).  

On top of that, climate change itself may trigger violence. By and large, communities experiencing climate-induced drought, erosion and reduced productivity may enter into a fierce competition to control resources, that could spiral into conflict. The United Nations Environment Programme (UNEP) reported that climate change has in part contributed to the Darfur conflict in Sudan. The Sahel is particularly vulnerable to climate-induced violent conflict.

IV. Future Risks and Starvation as an International Crime

Climate change and other factors heighten the potential impact of siege tactics, shortening the time between an attack on food and mass civilian death. A single attack on foodstuffs or blocking food convoys by the warriors produces acute food shortage and lethal civilian starvation far faster than in food-secure populations. 

Starvation can serve as an instrument to commit international crimes like genocide and crime against humanity. Deliberate deprivation of resources indispensable for survival, such as food or medical services, can constitute genocide (see article 6(c) here).  Starvation can also entail a crime against humanity. And because international response is slow, parties to conflict may be more likely to use starvation as a tactic to target civilian populations.

This article affirms that starvation as a method of warfare will continue to threaten Africa. Strong accountability, climate resilient agriculture and humanitarian action are therefore essential to prevent future atrocities. 

Esteemed followers of Addis Ababa University IHL Clinic,

The clinic has organized a webinar on the “Role of the International Humanitarian Fact-Finding Commission in Ensuring Respect for International Humanitarian Law”. On this grand event, the President and First Vice-President of the International Humanitarian Fact-Finding Commission will be presenting. All interested are cordially invited to attend the program on the coming Friday afternoon at 4:30 PM Ethiopian time.

Kindly pre-register at https://forms.gle/mPLJcKD6seKxUgNg8

• 

Esteemed followers of the Addis Ababa University IHL Clinic,

Canadian Red Cross, in partnership with the University of Ottawa, invites you to its IHL NOW 2021 lecture series taking place from May 31-June 4th.

The session starts out with an introductory lecture to IHL by Professor Marco Sassòli, well known by many of you and world renowned in this field.

It is followed by a career panel on where speakers will present on challenges in IHL in relation to the conflict in Ethiopia; the conflict in Yemen; the protection of the environment during armed conflict, and conflict-related sexual violence.

On Thursday, June 3rd, 8:00 PM evening Ethiopian time Daniel Mekonnen a Human rights lawyer and Lea Mehari the Founder of Addis Ababa University International Humanitarian Law Clinic will be presenting on the Tigray crisis in light of IHL.

The link for the registration is found at
https://www.redcross.ca/how-we-help/international-humanitarian-law/conferences-trainings-and-events/ihl-now-2021

Kind regards,
Yosalem
IHL Clinic Director

by Bailey R. Ulbricht, Allen S. Weiner | Apr 15, 2021FacebookTwitterEmailLinkedInPrint

HUMANITARIAN NOTIFICATION SYSTEMS & INTENTIONAL ATTACKS AGAINST HOSPITALS

by Bailey R. Ulbricht, Allen S. Weiner | Apr 15, 2021

Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.

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Despite the long-standing and widespread norm to the contrary, intentional attacks against medical facilities and their personnel in conflicts around the world have increased over the past decade. In Sudan, for example, the government army was accused of deliberately bombing hospitals—including one of the few remaining hospitals in rebel-held territory during the civil war—and schools. In Central African Republic, over 40 medical facilities operated by Médicines Sans Frontièrs (MSF) were intentionally attacked in 2017, and the attacks continued into the following year. Perhaps nowhere have attacks been more rampant than in Syria, where over the course of the ten-year conflict, at least 923 medical workers have been killed in at least 595 documented attacks on medical facilities. Such deliberate attacks contribute to the “humanitarian catastrophe” that Beth Van Schaack describes befalling Syria in her recent and powerful book, Imagining Justice for Syria.

These attacks pose major challenges to the operation of Humanitarian Notification Systems (HNSs), which were set up in various conflicts to share information with warring parties about the locations and movements of both humanitarian sites and workers. These systems are rooted in the assumption that the warring parties will use the information they receive to assist in complying with their duty not to attack humanitarians. We identify a number of challenges such deliberate targeting poses for HNSs—including issues concerning the systems’ purposes, list distribution, and vetting of humanitarian entities. Ultimately, we believe that improvement in the operation of HNSs is possible, but it will require collaborative engagement of humanitarians, international organizations, policymakers, and military leaders, as well as a willingness to re-examine long-held assumptions about how to safeguard humanitarians in times of war.

The Protection of Medical Facilities Under International Humanitarian Law

The protection of medical workers and their facilities is one of the oldest principles of the law of war. It dates back to the first Hague Regulations of 1899 and serves as a bedrock for modern international humanitarian law (IHL). Its purpose was then, as it is now, to protect field medics who care for the wounded and pose no immediate tactical threat. The immunity of medical workers also reflects the belief that medical care preserves dignity in death and suffering, regardless of which side a person fights on. Under modern law, it is a war crime to deliberately target or recklessly strike or attack medical workers and identifiable medical facilities in wartime.

Notwithstanding this clear-cut norm, as mentioned above, attacks on medical personnel and facilities have been rampant. Former U.N. Secretary-General Ban Ki-Moon decried the rising number of attacks in a U.N. Security Council meeting in May 2016. Speaking alongside him, former MSF President Joanne Liu fittingly referred to the situation as “an epidemic of attacks.”

There are different theories for why warring parties attack medical facilities and their personnel. Scholars have pointed to a broader wartime strategy of punishing civilians for their presumed political affiliations, dissuading medical workers and humanitarians from treating perceived enemies, ridding territory held by opposing forces of civilian infrastructure, or depriving civilians of the means to survive, thereby forcing them to flee or accept that party’s dominance.

Humanitarian Notification Systems  

To help warring parties avoid striking medical facilities and their personnel, humanitarian notification systems emerged from military deconfliction processes to notify warring parties of humanitarian “locations, activities, movements, and personnel.” With use dating back to at least the early 2000s, HNSs are now deployed in various conflicts to provide warring parties with necessary data of medical facilities and their personnel, often in the form of GPS coordinates. Participation in the system is voluntary on the part of both warring parties and humanitarians, however, and critically, the systems do not guarantee humanitarian protection.

There are varying models of HNSs administered by different entities. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), for example, runs centralized humanitarian notification systems in both Yemen and Syria, collecting fixed location and movement coordinates from humanitarian entities and disseminating them to some participating parties. In Yemen, recipients include the Saudi-led coalition; in Syria, they include the United States, Turkey, and Russia (though Russia recently backed out of the system). Importantly, OCHA does not verify the site submissions—including whether or not a site is indeed humanitarian and therefore protected under IHL. Instead, vetting a site’s status is the responsibility of warring parties, who are responsible for their own IHL compliance.

Beyond OCHA, several other entities also run HNSs. These include States, which rely on national humanitarian agencies to collect location data from humanitarian sites and disseminate it to the armed forces of that State, as well as often allied States operating in the area. Humanitarian groups such as the International Committee for the Red Cross (ICRC) and MSF also operate their own HNSs. In these ad-hoc systems, the ICRC and MSF work directly with warring groups in areas where they operate. The ICRC and MSF notify the warring groups of their humanitarian activities with a view towards ensuring protection. These systems often involve face-to-face meetings and can include non-State actors.

The Challenges Posed to Humanitarian Notification Systems

The increase in deliberate attacks against medical facilities over the past decade presents significant challenges to HNSs. HNSs are only as effective as the warring parties’ willingness to comply with IHL. Without compliance, HNSs are ineffective at best; at worst, they provide target lists for parties intent on attacking medical sites and personnel. This phenomenon demands a full understanding of the challenges posed by the rise in intentional attacks. We have identified a non-exhaustive list of these challenges below and grouped them into three categories: definition of purpose, list distribution, and humanitarian entity vetting.

Problem Area One: What Are the Purposes of an HNS?

The first set of challenges concerns whether the purpose of HNSs should change depending on a warring party’s (un)willingness to comply with IHL. In Syria, for example, the purpose of OCHA’s notification system as publicly stated is to “mitigate the risks, to the extent possible, of [humanitarian entities] being targeted / hit by an air strike.” But the persistence of strikes on humanitarian sites like hospitals—despite OCHA’s implementation of its HNS—highlights questions about the intended purpose. What functions should an HNS serve in the face of a warring party’s disregard for the law? And how could an HNS be redesigned to better advance those functions?

Protection of Humanitarian Entities?

A traditional view—reflected in OCHA’s system in Syria—is that HNS serves to enhance the protection of humanitarian entities. If this is the purpose, one possible change in HNS operation could be to exclude any party that intentionally targets medical facilities from access to the disseminated list. Or the exact location of humanitarian sites could be obscured in some way to protect them from attack. Other changes could involve using HNS information to discourage warring parties from attacking humanitarian sites by increasing the cost for such actions; for example, HNS information could be used to increase diplomatic pressure or exert public condemnation (“naming and shaming”).

Accountability?

Yet if warring factions repeatedly intentionally target humanitarian entities, it is far from clear how HNS can possibly hope to achieve the goal of protection, given that the legal obligation lies with the parties themselves. In such circumstances, HNS could prioritize accountability rather than protection as its purpose. Enhancing accountability would focus on data tracking and storage. This includes, for example, systematic tracking and storage of confirmation that warring parties received the coordinate lists of protected locations. Such evidence could be used to counter potential claims that a given attack was inadvertent. Admittedly, it is not clear what accountability would actually mean in this context of HNS. One view of accountability contemplates formal judicial proceedings, which would take place months, if not years, after the strikes occurred. Another view is that accountability could happen in real time in the form of naming and shaming.

We must also consider possible implications for humanitarian neutrality, a key principle requiring humanitarians to avoid favoring any side in an armed conflict. If an HNS were to be used to attribute a strike to a specific party, would this undermine the neutrality of the organization administering the list? Would humanitarian organizations be hesitant to participate in a notification system that could be used in a manner that calls out warring parties’ responsibility for IHL violations? And would warring parties refuse to participate in an HNS if they feared that it would be used in this way?

Problem Area Two: Who Gets the List?

The second set of challenges involves the distribution of protected location lists to warring parties if some are suspected of violations. Regardless of the purpose of an HNS, distribution to a party that subsequently intentionally targets hospitals can undermine the system’s functionality. Such distribution could sow distrust among humanitarians in the system. In worst case scenarios, it may lead to humanitarians opting out of the system altogether.

The first issue within this set of challenges is how non-compliance is defined. Is it only when a party commits intentional strikes against humanitarian entities? And if so, how would the intention of a warring party be determined? Must multiple strikes occur before a warring party is considered “non-compliant”? Could a party gain re-entry? These parameters would need to be worked out, likely by the list administrator, its participants, and/or an international body that could set guidelines for HNSs.

A closely connected issue is who decides whether a party is non-compliant. One option would entail leaving it in the hands of the list-controller, the entity that collects and disseminates the information. However, this option could impinge the list controller’s perceived or actual neutrality. This encroachment on neutrality—perceived or otherwise—risks sowing distrust among participants, causing some to decline participation. Instead, one could envision an independent review body in which a diverse set of experts receive evidence of strikes and make determinations of non-compliance. Another option would be to empower the humanitarians to make this decision themselves. If they receive reports that a particular entity is targeting hospitals, they could opt out of sending their coordinates to that specific entity. Perceived and actual biases, information access, and scope of mandates are relevant concerns with respect to all of these options.

A final, broader issue under this set of challenges connects back to the first problem area. If non-compliant members are removed from the system, does that contradict the very purpose of HNS?

Problem Area Three: Should Sites Be Vetted?

Under IHL, a humanitarian site is no longer protected when it is used to commit an act harmful to an enemy—such as serving as a weapons storage facility or a hideout for an armed group. Assertions that a humanitarian site is being used for hostile purposes is often presented as justification for attacks against it. Both Russia and Syria, for instance, have invoked this reasoning numerous times in response to allegations of war crimes.

To prevent misuse of humanitarian sites, and to refute false claims of such misuse, should list administrators vet humanitarian entities before including them in a notification system? Doing so could help refute false allegations, but it raises concerns because legal responsibility for IHL compliance—including confirmation a purportedly humanitarian entity is a legitimate target—is the responsibility of warring parties, not list administrators. Those involved in administering the lists, such as OCHA, might also credibly contend that they lack the resources and intelligence tools that would enable them to vet proposed humanitarian sites, much less conduct continual re-assessment as conditions on the battlefield change.

There are also concerns about the decision-making process. As with the issues raised in the previous problem area, what standards would be used to vet humanitarian entities? Who would decide whether or not an entity is in compliance? How frequently must these determinations be made, given the near-constant changing nature of conflict settings?

Next Steps: Addressing These Challenges

These challenges are serious but not insoluble. Addressing them will require creative, collaborative thinking, and willingness to rethink the design of HNS processes in situations where warring parties do not comply with IHL. Making progress will require bringing together stakeholders from different HNSs—including humanitarians, international organizations, policymakers, and military leaders—whose varying perspectives and interests can present solutions, along with buy-in to those solutions.

There is a cure to the epidemic of intentional attacks against healthcare facilities. But it will require collaboration and a willingness to question long-held assumptions about how to safeguard humanitarians in times of war.

***

Allen S. Weiner is Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School and serves as Director of the Stanford Center on International Conflict and Negotiation.

Bailey Ulbricht is a second-year law student at Stanford Law School, where she focuses on international humanitarian law, human rights law, and U.S. foreign policy.

***

Other Posts in the Symposium

• Beth Van Schaack’s Imagining Justice for Syria by Winston Williams
• Battlefield Detention, Counterterrorism, and Future Conflicts by Dan E. Stigall
• Strengthening Atrocity Cases with Digital Open Source Investigations by Alexa Koenig & Lindsay Freeman
• The Security Council Veto in Syria: Imagining a Way Out of Deadlock by Philippa Webb
• Universal Jurisdiction Investigations and Prosecutions: Syria by Alexandra Lily Kather

See also Beth Van Schaack’s book, Imagining Justice for Syria and her earlier Articles of War post with the same title.SUBSCRIBESearch for:RELATED POSTS

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March 24, 2021

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Beth Van Schaack’s Imagining Justice for Syria

by Winston Williams

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Imagining Justice for Syria

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August 25, 2020FacebookTwitterEmailLinkedInPrint

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Author: Yoseph Genene

The dramatic scene that went viral on the media in 2019, as some compared it with ‘Like Moses parting the Red Sea’, showing thousands of  demonstrators protesting a controversial extradition bill in Hong Kong; letting an ambulance passing through a sea of people as the crowd parts way for the medical emergency. This video for sure will restore your faith in humanity. Even though IHL is to be applied during an armed conflict, humanity is the common denominator here. Because in IHL, the ultimate purpose is to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity.

The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.

The 1948 UDHR article 25 mentioned health as part of the right to an adequate standard of living. In 1966, years after passage of the UDHR, the UN proposed another treaty that includes health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). Article 12 of the CESCR further clarified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction. Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” The right to health framework is set forth in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, which interprets the right to health and mandates States to respect, protect and fulfill the right to health of everyone, including persons affected by and/or involved in conflicts.

Armed conflict is one of the circumstances in which health care delivery is most needed. Despite this fact, attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict pose huge challenges to health care delivery.

In the world`s youngest nation South Sudan, not only hundreds of thousands of people have been effectively denied lifesaving assistance; but also, patients murdered in their beds in the town of Malakal, upper Nile state. A hospital in Leer, Unity state, was “thoroughly looted, burned and vandalized”. The MSF compound in Bentiu, capital of Unity state was also looted amid heavy fighting.

In the neighbor Ethiopia, in the recent situation in Tigray region, health facilities have been looted, vandalized, and destroyed in a deliberate and widespread attack on health care, ambulances have been seized by armed groups, and many health facilities have few or no remaining staff. Some have fled in fear; others no longer come to work because they have not been paid in months.

In Libya, on 18 February 2018, a woman in labor and her unborn child died on their way to the Wehda hospital, after armed men affiliated with the Libyan National Army at the Kirsa checkpoint, west of Derna, delayed their passage. Such acts are in breach of the obligation of parties to the conflict under IHL to ensure that adequate medical care is provided to the wounded and sick as far as practicable and with the least possible delay.

Also in Libya, in 2011 uprising discriminatory practices were frequently employed. Cars were stopped to prevent patients belonging to opposing ethnic groups reaching hospitals. IHL focuses on impartiality in responding to individuals in immediate need of care rather than on the structure and availability of services. IHL would forbid turning away a woman in labor based on her ethnic or political affiliation, it does not address entrenched practices that limit the availability, accessibility, and quality of facilities and services to members of her group and may make it dangerous for her to seek care. International Human Rights Law (IHRL) can assist in powerfully addressing these infringements.

The application of the general International Human Rights Law (IHRL) in an armed conflict is no more a debate. As settled by the ICJ, it will play a vital role protecting the right to health of individuals by complementing IHL which is the special law which applies in an armed conflict.

IHL has provided a framework for assuring protection and respect for medical personnel, medical facilities, and ambulances, as well as the wounded and sick, in IAC and NIAC.

The right to health has been interpreted as consisting of key entitlements and state responsibilities, including the interrelated and essential elements of availability, accessibility, acceptability, and quality of health care services, facilities, and goods.

Only in recent years has the importance of the right to health in war and other situations of political violence begun to develop. The first breakthrough likely came in a 2013 report by the Special Rapporteur on the Right to Health, Anand Grover. The report recognized that insecurity often limited states’ ability to ensure the resources needed to maintain access to health but explained that the requirement of progressive realization remained in place, requiring “concrete steps towards the full realization of the right to health to all, without discrimination and regardless of the status of persons as combatants or civilians.” His report was soon followed by another report by the OHCHR on economic, social and cultural rights in armed conflict, with a specific focus on the rights to health and to education. In which requires states to pay particular attention to persons rendered vulnerable by conflict, including internally displaced, women, children, older persons and persons with disabilities, among others. Further, to address marginalization arising from social, political and economic exclusion and discrimination.   

 

IHL remains a critically important set of rules through which to address obligations with respect to health in armed conflict, with IHRL acting as a powerful complement to it. In circumstances where no armed conflict exists, but where health workers, facilities, patients, and ambulances are subject to threats, attacks, and other forms of interference and denial, IHRL fills an important gap.

As IHRL has been contributing to ensure the interests and needs of the powerless and the vulnerable, also in time of  armed conflict and in time where there`s a debate whether the situation is an armed conflict or law enforcement,  the application of IHRL will address the powerlessness experienced by those seeking care and those trying to provide it, across all conflict settings.

• 

Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph