Beyond Compliance Symposium – Towards the Full Protection of Civilians

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. This post is an abridged version of an Article 36 policy brief on the full protection of civilians, published in October 2024.

In May of this year, in his annual report to the UN Security Council on the protection of civilians in armed conflict, the UN Secretary-General called for a new approach to protecting civilians. This approach works towards the “full protection of civilians.”  The aim is to continue to strengthen compliance with international humanitarian law (IHL)—the principal focus of the Council’s protection of civilians agenda of the last 25 years—but to complement this with efforts to better understand the complexity of harm experienced by civilians in armed conflict and the legal, policy, and operational responses required to address it (para. 61). The Secretary-General called on States, parties to conflict, UN actors, and international and civil society organizations “… to reflect on the full protection of civilians approach and how they could contribute to its further development and implementation” (para. 69).

Article 36 is one such civil society organization. So, how do we understand the full protection of civilians? And what does its further development and implementation mean in practical terms?

Article 36 and the “Full Protection of Civilians”

Article 36 has worked for a number of years to develop and promote a “full protection of civilians” approach, similar to that called for by the UN Secretary-General, as well as the Beyond Compliance Consortium (see here, here, and here). The starting point for Article 36’s work is the recognition that State discussions, particularly in the context of the Security Council’s protection of civilians agenda, are too narrow in focus. These discussions are generally weighted towards narrow physical ideas of protection and legal compliance, whereas protecting civilians should be understood as a broadly conceived imperative that stands above the framework of the current law. It involves a continuous process of analysing patterns of harm (not only violations), including wider and longer-term harm, and seeking entry points to prevent these harms.

Limitations to the Compliance-Centred Approach

An approach to protecting civilians that is centred on legal compliance, rather than addressing patterns of actual civilian harm, has significant limitations. Article 36 highlighted some of these during the development of the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas, endorsed by 83 States in November 2022. During this process, several States sought, unsuccessfully, to limit the Declaration’s scope to addressing civilian harm resulting only from the unlawful or indiscriminate use of explosive weapons.

As we argued (here and here), this approach is flawed for a number of reasons. Not least, it limits consideration of civilian harm caused by lawful attacks. Yet people are killed, injured, and experience long-term suffering from so-called “incidental harm.” The fact that the attack that caused the harm is judged to be legal (by those conducting the attack) does not erase the reality of that experience or lessen its practical impact on the lives of the affected civilians.

The Secretary-General’s Report goes further, observing that the focus on legal compliance is also limited by the fact that parties to conflict and States do not interpret and apply IHL uniformly and have different understandings of what compliance looks like (para. 58).

Utility of the Compliance-Centred Approach for States

The State focus on compliance is no accident. As Article 36 has argued elsewhere, preventing civilian harm can mean constraining the actions of those engaged in armed conflict. Many States involved in the Security Council’s protection of civilians debates are engaged in armed conflict or perceive an interest in maintaining maximum freedom of action for their militaries. This creates an inevitable tension for law and policy-making that aims to protect civilians. IHL balances these humanitarian and military imperatives and, as such, is not straightforwardly on the side of civilians. In this context, asserting the adequacy of compliance with existing law as a response to civilian harm, and non-compliance on the part of “bad actors” as the only possible problem, serves as a tool (for some) to dismiss the need to examine new measures that could strengthen civilian protection further.

To put it differently, a common reaction to efforts to better protect civilians—by identifying and curbing specific acts considered particularly harmful—is to assert that the current structure of legal protections and exposure to risk is optimal. As a result, no additional legal rule or policy commitment is necessary, nor could such a commitment be made without undermining both the law and the vital interests of militaries.

Over time, these practices have shifted IHL in the mindset of some diplomatic practitioners from being the mandatory baseline of civilian protection to being treated as a sort of “gold standard” and a shield against asking meaningful questions about the policies and practices of warfare. It is a mode of legalism that works actively and systematically to prevent the adoption of legal and non-legal responses beyond existing legal rules, and to deny any space for recog­nizing that people have valid interests that go beyond the baseline protections afforded to them as civilians under IHL.

From Compliance-Centred Protection to the Full Protection of Civilians

Rather than reducing people’s interests to only a set of minimum protections (embodied in IHL as interpreted and applied by parties to conflict), Article 36 has proposed that the term “civilian” (which is not without its limitations, here and here) could also be put to work, in this discursive space, towards people’s wider and fuller personal and social interests. That is to say, towards the “full protection of civilians,” which we describe as “an abstract point towards which there can be continuous movement and convergence.” Certain milestones or indicators can be suggested as markers along the way, but these should not be mistaken for the point itself, “which remains an aspirational state towards which we are progressively striving but never reaching”.

Working towards the full protection of civilians would allow us to overcome the narrow focus on IHL compliance and the limited view of harm as short-term, direct, physical effects. It would ensure that wider patterns of harm are acknowledged and taken into account in the consideration and development of policies aimed at shaping behaviour. In our view, the practical application of the full protection of civilians would involve the following six elements.

Constantly Working to Reduce Harm

This element recognises stronger protection of civilians as an ongoing and evolving challenge and goal rather than a static and finite set of obligations. Protecting civilians should include conflict prevention and sustainable development, characterised by the highest standards of public health, evidence, and transparency in analysis for policymaking, accountability in governance, and environmental protection.

Taking a Public Health Approach to Developing Strategies to Reduce Harm

This includes starting with the widest view of civilian harm from conflict and identifying and recognizing the fundamental importance of patterns of harm that are produced over time, rather than only being concerned with individual cases. Starting from a public health perspective can encourage a better understanding of the full nature and scale of harms that conflict inflicts on a population’s health and wellbeing, and thus illuminate more successful entry points for policy responses.

For effective interventions to protect civilians, policy discussions should be based on and structured around the pattern of harm identified. These discussions should refer to the existing social and economic structures (such as health, education, water and sanitation) from which harms can propagate, as well the means and methods of warfare (the technology used plus its context).

Strengthen Data on Harms from Conflict and the Determinants of Harm

The previous point requires attention to building the data from which we analyze conflict. Public health approaches are based on data, and a full assessment of harm requires broad data across all aspects of public health. Identifying patterns of harm requires disaggregated data within which relationships and correla­tions can be identified over time, including on how different groups experience different vulnerabilities and how different impacts correlate with particular means or methods of warfare.

Recognizing that IHL Provides a Baseline of Obligations

IHL applies in all armed conflicts and sets out legally binding rules that all parties to a conflict must meet. Too often, the law is used as an excuse for refusing to formalise policies that could afford greater protection. There is substantial space for States to develop and adopt policies and practices to strengthen protection of civilians beyond IHL obligations.

These include military tactical directives or rules of engagement within specific conflicts, as well as overarching national and international policy documents. Relevant examples include the United States’ Civilian Harm Mitigation and Response Action Plan and, from an international perspective, the Safe Schools Declaration (2015) and the Political Declaration on the Use of Explosive Weapons in Populated Areas (2022). Reference can also be made to initiatives that engage non-State armed groups to strengthen the protection of civilians, such as the Geneva Call Deeds of Commitment. It is universally recognized that such policies adopted in or in response to conflict cannot fall below legal obligations.

Full Protection of Civilians Relies upon Norms and Standards that Value Civilians

It is necessary to resist the downgrading of what is considered acceptable in health, educa­tion, or other social areas that frequently accompany conflict. Societal norms and standards that uphold human dignity as well as expecta­tions regarding the functioning of social services can enable us to build stronger and more demanding expectations. This also serves as a means to better protection by setting standards for actors engaged in conflict.

The Full Protection of Civilians should be a Collaborative Endeavour

Minimizing the effects of conflict on civilians is a moral obligation to which we can all commit. The interests of specific groups (States, parties to conflict, national and international actors, etc.) may pull in different directions, particularly where there persists a tendency to frame military interests as necessarily in opposition to civilian interests. Recognizing our shared common goal should, however, enable us to work towards that goal constructively, collaboratively, transparently and in good faith.

That is certainly Article 36’s intention as we continue to develop and promote the full protection of civilians approach.

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Simon Bagshaw is a Policy Advisor with Article 36, a UK-based specialist non-profit organization focused on reducing harm from weapons.

Photo credit: DYKT Mohigan