Beyond Compliance Symposium – Broadening the Lens: Rethinking Civilian Harm within International Humanitarian Law

Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. You can find the introductory post here. The symposium invites reflection on the conceptualization of negative everyday lived experiences of armed conflict and legal and extra-legal strategies that can effectively address harm and need.

As the opening post of this symposium highlighted, even when parties to armed conflicts claim compliance with international humanitarian law (IHL), significant civilian suffering persists. It is therefore unrealistic to expect IHL to serve as a silver bullet to address all harm or guarantee comprehensive civilian protection even when fully complied with. Nevertheless, the vital minimum standards of IHL remain an indispensable starting point.

In this post, we argue that the protective potential of IHL can be reinforced by adopting a more inclusive approach to its application and interpretation. This is particularly important given increasing instances of these minimum standards being undermined or inadequately fulfilled in numerous conflicts around the world.

Even with the current narrow or limited understandings of how IHL speaks to civilian harm, there are mounting concerns (for examples, see here and here, p. 37 para. 2) that military perspectives and interests, as well as strategic or geopolitical priorities, are exerting a disproportionate influence on interpretations of IHL, effectively hollowing out its protective value. This alarming trend must be urgently counterbalanced if IHL is to offer meaningful limitations to the myriad harms that befall civilians in armed conflict.

IHL affords protection to all members of the civilian population. Civilian populations are diverse and include infants, children, older persons, women and men, persons who are LGBTQI+, pregnant, post-partum, and nursing mothers, persons with disabilities, ethnic minorities, and migrants. A civilian has multiple intersecting identities impacting their experience of armed conflict. Taking into account the lived experiences and specific needs of these diverse segments of the civilian population in the interpretation and application of IHL is therefore necessary to ensure full compliance with the law.

Parties to conflicts, third States, as well as some IHL experts and practitioners (ourselves included), have failed to always recognize the diversity of the civilian population and the corresponding wide range of experiences of civilian harm. This results in a consequent failure to ensure the protection of all members of the affected civilian population, as is required under IHL.

Breaking the Perception of Homogeneity of the Civilian Population

IHL is frequently portrayed as a binary framework, balancing military necessity on one hand and the protection of civilians (or humanity) on the other. This perspective often  treats the civilian population as a single, homogenous group, resulting in significant protection gaps owing to the under-inclusive application of IHL. IHL rules and concepts remain strong and highly relevant to the regulation of armed conflict and the protection of civilians and others not or no longer participating in hostilities.

To enhance the effectiveness of IHL, it must be interpreted and applied in a more inclusive manner, informed by contemporary understandings of conflict dynamics, risks, and vulnerabilities. Arms bearers need to be sensitized to the diversity of civilian populations and the specific vulnerabilities of certain groups, and this knowledge must be reflected in military doctrine and training.

Recent work and analysis such as the 2019 “Disability and Armed Conflict Study” by the Geneva Academy, the International Committee of the Red Cross’s updated commentaries to the Geneva Conventions, and its reports on “Gendered Impacts of Armed Conflicts and Implications for the Application of IHL” (2022) and “Childhood in Rubble: The Humanitarian Consequences of Urban Warfare for Children” (2023) have all helped to enhance stakeholders’ knowledge of inclusive interpretations of IHL rules (see here and here, paras. 22-29).

While this is important progress, it only begins to scratch the surface of how the protections of IHL should be applied to respond to the reality of who the civilian population is and the diverse vulnerabilities and needs across different segments of the civilian population.

IHL experts may believe that we are uniquely positioned to identify gaps in IHL analysis and implementation. But blind spots are by definition elusive, particularly as some IHL experts may lack lived experience, either in terms of marginalization generally, or more specifically in terms of how the realities of armed conflict manifest for different groups of civilians. Furthermore, the IHL community (to the extent to which we can speak of a single such community) has a long way to go in terms of reflecting on these often-overlooked perspectives in the relevant debates, discussions, and norm-setting processes. This applies to us at the Diakonia International Humanitarian Law Centre as much as anyone else.

With this in mind, and recognizing the importance of analysing different dimensions of inclusion in IHL, the IHL Centre launched the first specialist network on inclusion and IHL in 2024. This network held an inaugural, in-person meeting in Geneva to bring together specialists across a range of fields including gender, men, women, girls, boys, children, older persons, persons with disabilities, LGBTQI+ rights, ethnic and religious minorities, and migrants.

What follows is a snapshot of some of the issues raised by the network, which will be explored in greater detail in the forthcoming Inclusion and IHL Report, to be released in 2025.

Inclusion Gaps and Their Consequences

No person has a single identity. Instead, a person will have multiple identities that will intersect and shape their lived experience of conflict, including the level and type of harm they are exposed to as well as the barriers that they experience in seeking protection. Many of the inclusion gaps identified by the Expert Network intersect with each other, and therefore we need to be mindful not to increase exclusion by viewing any group as homogenous rather than inherently intersectional.

When not interpreted in an inclusive manner, the rules of IHL governing the conduct of hostilities may fail to adequately protect certain categories of persons who are more vulnerable to the impact of hostilities. The IHL rules relating to precautions in attack, in particular the obligation to provide effective advance warning, only provide meaningful protection where such warnings are accessible to all within the affected population. A person with visual impairments may not be able to read a written warning, or a person from a linguistic minority may not be able to interpret a warning given in the dominant language. Warnings disseminated on social media platforms may not be accessible to persons with limited digital literacy, as is sometimes the case with older persons.

In addition, the warning must be actionable, meaning it must give time to allow all civilians in the area to flee to safety. The time given to flee should reflect the capacities of different groups, such as the wounded and sick, persons with disabilities, older persons, pregnant individuals, and persons accompanied by infants and children.

Similarly, parties to a conflict are obligated to do everything feasible to verify that targets are military objectives. However, men and boys are often disproportionately considered combatants, in part due to discriminatory assumptions, and therefore are more at risk of being targeted and killed. This is especially the case when they are of fighting age. This practice has the effect of shifting the burden of doubt concerning civilian status.

Another area susceptible to protection gaps is humanitarian assistance, which by its very nature is context-specific and must be tailored to the needs of affected civilians. This translates into an obligation for parties to an armed conflict to facilitate humanitarian assistance to those in need without adverse distinction, keeping in mind that needs within the civilian population are not homogenous. Some IHL rules provide for specific needs of certain groups. For instance, Article 23  of the Fourth Geneva Convention recognizes that pregnant, lactating, and nursing mothers have humanitarian needs specific to the challenges posed by childrearing in armed conflict.

While IHL requires that civilians receive the assistance they require, the specific assistance and protection needs of many other categories of persons may not always be as explicitly spelled out in its provisions. For instance, persons with disabilities may require assistive devices such as hearing aids, wheelchairs, and glasses to ensure their survival. Other categories of civilians may require access to specific goods and services. Migrants, displaced persons, or those within the LGBTQI+ community may be denied meaningful access to assistance due to the specific risks in certain localities, not to mention a whole range of discriminatory factors resulting in basic needs being unmet.

Certain groups are also more likely to be subject to arbitrary detention due to their identity or status. This may be the case for LGBTQI+ persons, migrants, and displaced civilians due to discriminatory practices by parties to the conflict. Detention may exacerbate civilians’ vulnerabilities to harms and pre-existing needs. Persons with disabilities may not be provided with the support necessary to meet their essential needs, women may be denied access to sanitary products or the necessary hygienic facilities during menstruation, and certain groups may suffer mistreatment due to their beliefs or presumed identity, such as religious or ethnic minorities. Certain groups also face greater risk of mistreatment and abuse, including women, members of the LGBTQI+ community, persons with disabilities, and older persons. Understanding the diversity of persons and their essential needs in detention is necessary to ensure that they are treated with humanity.

Conclusions and Recommendations

Addressing civilian harm and responding to humanitarian need in armed conflict, cannot be addressed comprehensively through a normative lens, let alone the limited lens of IHL. Yet, it is a foundational starting point, and as such it remains essential to uphold and apply IHL rigorously and adequately, and therefore we must at least broaden that lens.

Hence, for armed actors to fully comply with their IHL obligations and civilians to receive the strongest possible protection from conflict-related harm under that framework, it is imperative that stakeholders increase their understanding of the diversity of civilian populations and ensure that this knowledge is integrated into an inclusive interpretation of IHL. Where reliable datasets on the civilian population are available, these should be used by arms bearers in their operational planning and humanitarian responses. Where such datasets are not available, community leaders and representatives of local groups (such as women’s groups) should be meaningfully consulted to understand the affected populations diversity, daily-life patterns, and vulnerabilities.

IHL practitioners must work to ensure that the interpretation and application of IHL is strengthened by incorporating an inclusive understanding of the protections it already offers, contributing to a comprehensive practical application of the framework. With our upcoming inclusion and IHL report led by our expert network, we aim to take a proactive step toward meaningful progress on inclusivity within IHL. This post offers just a glimpse of what’s to come.

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Stephen Wilkinson is the Director of the IHL Centre at Diakonia.

Dr Yvette Issar is the Founding Director of The Olerai Lab, a Senior Legal Adviser with the International Humanitarian Law Centre, and a consultant for the Quaker United Nations Office in Geneva.

Emilie Fitzsimons is a Senior Legal Advisor for the Global Desk of the Diakonia International Humanitarian Law Centre.

Dr Matias Thomsen is a Lecturer in Criminal Law and Evidence at the University of Tasmania and a Senior Legal Advisor for the Global Desk of the Diakonia International Humanitarian Law Centre.

Alice Priddy is the Manager and Senior Legal Advisor at the Diakonia International Humanitarian Law Centre.

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