The Imperative of Immunity
Paper presented to the Joint Service Conference on Professional Ethics:
“Moral Issues in Military Intervention”
By Reuben E. Brigety, II
Since the end of the Cold War, the international community has increasingly had to grapple with the idea of conducting military operations to protect civilians from the commission of gross human rights violations. Indeed, there has been significant debate about whether states have a right to violate the territorial sovereignty of another state in order uphold international humanitarian and human rights norms.
While such jus ad bellum
questions regarding the ethical and legal justification for the use of armed
force are of great importance, they are not the focus of this paper. Instead,
this paper considers the jus in
The question will be addressed in four steps
Humanitarian intervention. Johansen proposed the following definition for humanitarian intervention when he wrote:
…humanitarian intervention means (1) intervening in a country without its consent, (2) using coercive means that often are military but need not be exclusively so, and (3) intending to terminate a government’s gross violations of human rights.
This very useful definition differentiates humanitarian intervention from peacekeeping operations, with which it is often confused. Diehl defined peacekeeping as:
…the imposition of neutral and lightly armed interposition forces following a cessation of armed hostilities, and with the permission of the state on whose territory these forces are deployed, in order to discourage a renewal of military conflict and promote an environment under which the underlying dispute can be resolved.
When considering these definitions, it is clear that humanitarian intervention is different from peacekeeping operations in some very important respects. First, humanitarian intervention involves an involuntary breech of territorial sovereignty for the state where the intervention occurs, whereas peacekeeping forces can only be deployed to an area with the consent of the parties to the conflict. Second, the primary objective of humanitarian intervention is to stop the perpetration of gross human rights abuses and humanitarian law violations. While the cessation of human rights abuses may be a welcome consequence of a successful peacekeeping operation, it is not the main objective. Peacekeeping operations are conducted to safeguard the cessation of hostilities among belligerents for the purpose of conducting non-violent conflict resolution. To that end, it is critical to note that peacekeeping, as defined herein, only occurs after parties to a conflict have agreed to a cease-fire, whereas humanitarian intervention can (and often does) take place in the midst of ongoing hostilities.
While there are similarities, humanitarian intervention is also distinct from conventional warfare. Clausewitz wrote, “War therefore is an act of violence intended to compel our opponent to fulfill our will.” In Clausewitz’s definition, the object of “will” for which an act of force is committed could be any number of things, whereas for humanitarian intervention the object sought should only be the cessation of human rights and humanitarian law violations. As shall become clear later, this difference in objective ultimately has consequences for the manner in which military forces conduct their operations in the field.
Non-combatant immunity. In order to understand the concept of non-combatant immunity, it is necessary to define the term “non-combatant,” and to explain the rights and obligations derived from the idea of immunity in this context. The former will be done here, and the latter in the next section.
The term “non-combatant” is not defined in the Geneva Conventions of 1949 or in their 1977 Additional Protocols. Instead, Protocol I defines the terms “civilian” and “civilian population” and accords certain protections to these groups. Article 50 of Protocol I states:
1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
Article 4A (1), (2), (3) and (6) of the Third Geneva Convention says:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied….
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power….
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Furthermore, Article 43 of Protocol I states:
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party….
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.
Hence, for the purpose of this study, a non-combatant may be defined as a person who does not take part in hostilities during an armed conflict and who does not have a legal right to do so under the law of armed conflict.
What obligation, if any, exists for parties to a conflict to respect non-combatant immunity in the midst of hostilities? To answer this question, one must first examine the 1977 Additional Protocols to the Geneva Conventions (Protocols I and II). The concept of immunity from attack enjoyed by civilians in an international armed conflict is most clearly stated in Article 48 of Protocol I:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations against military objectives.
Article 51 of Protocol I goes on to say:
1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited….
Protocol I thus quite clearly states that civilians are to be protected from indiscriminate attack during the conduct of hostilities, and that belligerents have a positive obligation to discriminate between combatants and civilians (or “non-combatants”) when they use force.
It is important to note, however, the circumstances under which these provisions are applicable. According to Article 3 of Protocol I, the treaty is applicable during international armed conflicts as defined by Common Article 2 of the Geneva Conventions:
…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting parties, even if the state of war is not recognized by one of them [emphasis added].
Additional Protocol II to the Geneva Conventions addresses non-international armed conflict, and it has similar provisions regarding the protection of civilians in such cases. Article 1 of Protocol II states:
1. This Protocol… shall apply to all armed conflicts which are not covered by Article 1 of ….(Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a party of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
Thus these two major international treaties which deal, in part, with the protection of civilians during armed conflict are only explicitly defined for international and non-international (or internal) armed conflict. There is no international treaty which deals with the protection of civilians during humanitarian intervention, a condition which does not fall neatly into either category.
When one looks to customary international law, the case for parties respecting non-combatant immunity during humanitarian interventions appears stronger. Although over 150 countries have ratified Protocol I, many other countries have not. The treaty is therefore not universally applicable as an instrument of codified international law. Yet many of its provisions, including the protection of civilians from indiscriminate attack and the requirement of distinction between combatants and non-combatants, are widely viewed as obligatory under customary international law. Spieker has written:
The principle of distinction is a technical term in the laws of armed conflict intended to protect civilian persons and objects. Under this principle, parties to an armed conflict must always distinguish between civilians and civilian objects on the one hand, and combatants and military targets on the other.
The meaning of the term was spelled out in Additional Protocol I of 1977. While a number of States have not ratified Protocol I, the obligation to uphold the principle of distinction is also valid as customary law.
The International Committee of the Red Cross (ICRC) has also stated that the law of armed conflict, to include the protection of non-combatants, is valid during humanitarian interventions. On behalf of the ICRC, Ryniker wrote, “If armed force is used, international humanitarian law [also known as the law of armed conflict] applies regardless of the grounds for the intervention.”
In addition to the legal arguments for preserving non-combatant immunity during humanitarian interventions, there is a political argument as well. The ostensible purpose of an humanitarian intervention is to stop the commission of gross human rights violations and, in the process, to alleviate the humanitarian suffering of the civilian population at risk. If civilians are killed in an humanitarian intervention in such numbers that the principle of non-combatant immunity is generally undermined, then popular support for the operation can be eroded both in the country affected and in the international community as a whole. Every effort, therefore, must be made to respect non-combatant immunity in intervention operations.
If one accepts the proposition that a state which initiates an humanitarian intervention genuinely wishes to abate the suffering of the aggrieved population rather than contribute to it by causing more civilian deaths, then the problem of non-combatant immunity during humanitarian interventions often lies not in the acceptance of this principle but rather in its application. In some ways, the problem of respecting non-combatant immunity during humanitarian interventions is no different than the problem of observing this principle during conventional military operations. Even if a party to a conflict attempts to avoid killing civilians in the course of hostilities, it is often impossible to achieve a perfect record in this regard. In the course of air operations, for example, it may be impossible for targeters or pilots to know that civilians are inside a command and control facility (such as the Al-Firdos bunker in Baghdad during the Persian Gulf War in 1991) or nearby a concentration of fielded enemy forces (as media reports suggest may have been the case in various incidents during the coalition air war in Afghanistan in 2001). Similarly, civilians may also get caught in the cross-fire of uniformed land forces engaging each other on the battlefield, as often happened in engagements between Bosnian and Bosnian Serb forces in rural areas during the 1992-95 Yugoslav war.
Yet there are tactical and
operational/strategic circumstances peculiar to humanitarian interventions
which make the task of respecting non-combatant immunity particularly
problematic. The tactical problem derives from the proximity of military forces
to concentrations of civilians during intervention operations. Since
humanitarian interventions are designed to stop atrocities against a civilian population,
they often occur in areas where oppressive military forces and masses of
civilians are in close proximity. This was the case in parts of
Operational/strategic difficulties arise from the generally different character of humanitarian interventions from conventional military operations. Since the former seeks humanitarian ends rather than the destruction of the enemy, there may be an overriding political imperative to conduct intervention operations with a restraint not usually found in conventional military operations. Bruderlein wrote:
According to these rules [which govern the strategy of conventional military operations], the coherent strategy is to maximize the level of force exerted to achieve these military objectives [such as obliging the opposing party to surrender] and minimize one’s own human and material costs.
The situations for which these principles were elaborated are entirely different from the circumstances faced by military forces engaged in humanitarian interventions. The primary objective of humanitarian intervention is the rehabilitation rather than annihilation of the other party through the removal and possibly prosecution of its political/military leaders and the strengthening of peaceful elements in the civil society. In some cases, the obliteration of the military capacity of the targeted state may proved [sic] to endanger peace and stability at a domestic and regional level.
While there may be a political imperative to conduct intervention operations with exceptional restraint, the operational imperative to subdue an armed force opposed to the intervention may cause commanders to seek less restrictive rules of engagement to achieve operational success. Such an imperative may lead senior policymakers to make a strategic choice in favor of more robust military operations, thereby changing the fundamental character of the mission from humanitarian intervention to something more akin to conventional military operations. In such a situation, particularly with civilians present, less restrictive rules of engagement may place the civilian population in greater danger.
Since the difficulties of preserving non-combatant immunity in humanitarian interventions are both tactical and operational/strategic in nature, it stands to reason that potential solutions to these problems would be both tactical and operational/strategic in nature as well. On a tactical level, one of the main problems of preserving non-combatant immunity is the incidental or deliberate proximity of opposition forces to the civilian population. If it is assumed that the opposition forces (which, by definition in a humanitarian intervention, are contributing to the perpetration of abuses on civilians) does not have an incentive to decouple themselves from the civilian population during hostilities, then the question arises how can the intervening forces engage combatants intermixed with non-combatants without causing death or permanent injury to the latter? One possible solution is through the use of non-lethal weapons (NLW).
The US Department of Defense clearly recognizes the need for NLW capability for a variety of reasons. General James Jones, Commandant of the US Marine Corps and DoD Executive Agend for the Joint Non-Lethal Weapons Program, wrote:
Today, world events mandate a need to project non-lethal force across all levels of war to enable our warfighters and leaders to effectively deal with a host of traditional as well as non-traditional threats. Now more than ever, the minimal level of public tolerance for collateral damage and loss of human life, coupled with the tendency for the typical adversary to exploit our rules of engagement to his benefit, necessitates an effective and flexible application of force through non-lethal weapons.
There are a number of different non-lethal weapons in various stages of development by the US military. For example, the 66mm Vehicle Launched Non-Lethal Grenade is a non-lethal crowd control/area denial weapon that can launch two types of grenades.
The first is a blunt trauma munition with approximately 450-.32 caliber rubber balls in a housing attached in a metal base.
The second is a distraction (flash-bang) round made of a polyurethane material. The rubber ball grenades will eject rubber pellets while the distraction device will create an audible and visible distraction… The objective is to provide the friendly forces with the capability to conduct force protection without direct contact with rioting crowds.
Another non-lethal weapon under development is the Vehicle Mounted Active Denial System (VMADS). VMADS:
consists of a radar dish on the back of a vehicle that emits a high-powered electromagnetic energy beam…[that produces a] burning sensation on the skin of people up to 700 yards away. The beam penetrates less than a millimeter of skin, heating the skin’s surface but causing no burn marks. This sensation triggers the body’s defence [sic] reactions as well as a certain amount of confusion as to the source of the pain. When the subject moves out of the beam [the pain] stops.
Of course, such non-lethal weapons much continue to be tested and developed to ensure that they do not cause superfluous injury or even death. Nevertheless, the concept of effective and safe non-lethal weapons may help resolve the tactical problem of attacking opponents intermixed with a civilian population without causing lasting harm to the latter.
The problem of non-combatant immunity in intervention operations cannot simply be resolved on the tactical level. There must be an operational strategic component to the solution as well. Again, Bruderlein wrote:
…humanitarian interventions are likely to involve new complexities such as massive population displacement, the mixing of combatants and civilians, deep-rooted ethnic dynamics to the conflict, and more generalized insecurity. Therefore, simply abiding by the rules of humanitarian law by targeting military forces may not guarantee the effectiveness of military operations in humanitarian crises. The lack of a proper strategic framework for military action in these circumstances questions the legitimacy of the involvement of international institutions in these exercises…. The events of the past few years in particular press us to engage in a substantial review of the international community’s approach to the use of military force to protect civilians in situations of armed conflict.
It is imperative
that senior policymakers, both military and civilian, clearly define the
parameters of a humanitarian intervention before it is initiated; that they
continue to reassess the mission as the situation on the ground develops; and
that they make strategic choices to ensure that a humanitarian intervention
does not unwittingly evolve into a conventional military operation. Such
strategic assessment is, admittedly, easier said than done. Yet it is crucial
to recognize that such analysis is vital if an operation is to maintain its
humanitarian character. Otherwise, the move into more conventional military
operations, particularly in an area heavily populated by civilians, can
arguably increase the level of danger both to civilians and to the intervening
forces. It was just such a strategic failure which led, in part, to the
collapse of the UNOSOM I mission to
Armed conflict is an inherently dangerous activity for both combatants and non-combatants alike. Even when waged for such noble purposes as alleviating human suffering, there is still an overriding imperative to ensure that civilians are not caused more suffering by force which is used for their ultimate benefit. Although advances in non-lethal technology as well as improved strategic assessment and operational choice may help to improve the preservation of non-combatant immunity during intervention operations, the observance of this doctrine in practice is a dilemma which will likely persist for some time to come. Yet it is one with which soldiers, scholars and statesmen must continue to grapple to ensure that such interventions are humane in their application as well as in their outcome.
 Reuben E. Brigety, II is a researcher in the Arms Division of Human Rights Watch. The opinions expressed herein are entirely his own and do not necessarily reflect the policies or positions of Human Rights Watch.
 For such a discussion, see Adam Roberts, “The So-Called Right of Humanitarian Intervention.” Yearbook of International Humanitarian Law, The Hague, vol. 3, Summer 2001.
 Robert C. Johansen “Limits and Opportunities in Humanitarian Intervention.” The Ethics and Politics of Humanitarian Intervention. Stanley Hoffman, ed. (Notre Dame, IN: University of Notre Dame Press, 1996).
 Paul F. Diehl International Peacekeeping. (Baltimore, MD: The Johns Hopkins University Press, 1994), p. 13. While Diehl suggests that humanitarian intervention can be non-military in character, this study will focus exclusively on humanitarian intervention which involves the use of military force.
 Article 13 of Protocol II notes in terms similar to Article 51 of Protocol I that civilians and the civilian population as such shall generally be protected from the dangers of military operations. Yet Protocol II does not have a provision similar to Article 48 of Protocol I which requires belligerents to distinguish between combatants and non-combatants. This difference reflects the greater difficulty in internal armed conflicts between civilians and combatants, a situation which often occurs during humanitarian interventions as well.
 It should be noted that even if the language of the Protocols formally extended their provisions to acts of humanitarian intervention, neither treaty has been universally accepted. Protocol I, for example, has not been ratified by important members of NATO, including France, Turkey and the United States.
 Heike Spieker, “Civilian Immunity.” Crimes of War: What the Public Should Know. Roy Gutman and David Rieff, eds. (New York: W.W. Norton and Company, 1999), p. 84.
 Anne Ryniker “The ICRC’s Position on ‘Humanitarian Intervention.’” International Review of the Red Cross, No. 482 (30 June 2001), pp. 527-532. Anne Ryniker is a legal adviser and Deputy Head of the ICRC’s Legal Division.
 Claude Bruderlein “Regulating the Use of Force in Humanitarian Crises: The Case of Protected Areas.” Paper presented to the Symposium on International Relations and Humanitarian Intervention Organized by the China Institute of International Studies, Beijing, 21-22 August 2000.
 “Joint Non-Lethal Weapons Program – Acquisition Programs.” Printed from http://www.jnlwd.usmc.mil/Programs/acquisition.htm.
 Tobias Feakin “Bradford Non-Lethal Weapons Project Research Report 3, August 2001.” Printed from http://www.brad.ac.uk/acad/nlw/research_report_number_three.html.
 Bruderlein, 21-22 August, 2001.