[ 11 January 2006 conference, organised by the MSF Foundation ]
PRESENTATION OF THE CONFERENCE
The invasions of Afghanistan and Irak, like the military interventions under UN mandate since the early 1990s, though on a different level, have called again into question the notion of occupation, a notion still imbedded in the experience of the two World Wars of the XXth century. This new questioning comes at a time when humanitarianism is experiencing a spectacular growth, as reflected in the number of its actors and their perimeter of intervention. From Somalia to Afghanistan and from the israeli-palestinian conflict to the "Second Gulf War", the debates on the qualification of these situations and the responsibilities at stake, as well as those elicited by the operational difficulties faced by aid agencies, all demonstrate a lack of consensus and a difficulty to come up with satisfactory answers.
Is the notion of occupation a meaningful one for humanitarian action? Do situations of occupation create specific problems and constraints to aid agencies, whether they are expressed in terms of responsibilities, operational modes or perceptions by the actors of the conflict and the assisted populations? Have humanitarian organisations not become, by their size and the variety of their realms of action, themselves a part of the problem?
Jean-Hervé Bradol, President of Médecins Sans Frontières:
"Occupation: a problematical notion for the humanitarian actor"
To open the symposium, Jean-Hervé Bradol first of all mentioned the issues involved in defining the notion of occupation. From this viewpoint, the cases in the study undertaken by MSF on this subject were selected on the basis of a factual rather than a legal definition. He first became interested in this notion on observing the spontaneous reactions of humanitarian teams faced with certain concrete situations. Jean-Hervé Bradol noted that the concept of occupation was usually seen negatively "as an injustice committed by the strong against the weak, the denial of the national rights of a human group". Nonetheless, an invasion followed by an occupation may on the contrary also be perceived as an act needed to liberate a territory or put at end to tyranny. This is how he interprets the temptation for humanitarian teams to deal with the operational blockages they encounter and the violence they witness by calling for outside armed intervention. One cannot however ignore the fact that the armed interventions in Iraq and Afghanistan have placed the subject of military occupation firmly in the spotlight, with considerable debate around and opposition to the policies implemented in these two theatres. Although this question has polarised opinions at MSF as much as anywhere else, it would seem however to be something of a "smokescreen issue" masking a far deeper question for humanitarian organisations, that is - regardless of the situation – the question of knowing who benefits from the humanitarian aid given and whether or not it is diverted from its purpose.
Annette Becker, Professor of contemporary history (University Paris X):
"Atypical humanitarian solutions for an atypical front-line: occupations during the First World War."
For Annette Becker, a historical study of periods of occupation leads to a distinction being made between the strictly military periods - invasions – and the longer periods of administrative/military organisation. In a comparative approach, one must also find a balance between the national history of the occupiers and the occupied and the international history of the conflicts, international law and humanitarian interventions. The history of occupations in the 20th century, which began in the first months of the First World War, is one which almost always involves displaced populations, repressive measures and even extermination policies, repeatedly replayed from one occupation to the next. However, even to this day, memories of the Great War are still almost exclusively those of the combatants, whereas the violence suffered by the civil populations in the occupied regions is to a large extent unknown.
For these populations, the paradox of the time, which is the source of an enduring misunderstanding, was to see themselves as being in the front-line rather than at the rear. Annette Becker describes the occupation as being the place where the conflict was total, constituting a two-fold imprisonment for the civilians. In the occupied areas of northern France and Belgium, the aim of the occupiers was to continue the war through contributions from the civilian population by requisition and forced labour. As they faced difficulty in carrying out these measures, the German military authorities instigated a policy of terror, including multiple measures of collective reprisals, and leading to the creation of concentration camps, to which some 300 to 400,000 people were deported between 1914 and 1918. The sense of imprisonment that the military order imposed on the occupied population was compounded by actual physical imprisonment in the camps.
At the time, no international convention dealt with the internment of civilians. Jus gentium was an extremely vague notion in a time of conflict, while the conventions of The Hague only afforded protection to wounded soldiers and to prisoners of war. This legal framework from which civilian victims were almost totally absent, explains why the ICRC which, with the Papacy, was the main humanitarian actor in the First World War, was so hesitant in dealing with them. Annette Becker however warns against an anachronistic criticism of the ICRC and stresses that in the conflict it was fighting to apply the law. To be able to help prisoners of war and the wounded, the ICRC scrupulously adhered to the existing laws, which it attempted to have observed by the belligerents who all shared the ideological conviction of fighting a just war. For them, even this conventional law could not apply to an enemy they depicted as brutal and without honour. On both sides, the caricatures of the time show the ICRC as being systematically deceived by the enemy.
Annette Becker therefore summarises in two ideas what she calls the "immense ambiguity of humanitarian action in a time of occupation", two ideas which resonate loudly in the recent political context. The first idea is that of unthinkable neutrality. In a context of total war in the name of law and civilisation, claiming a position of neutrality would seem to be unacceptable and inevitably lead to suspicion. Throughout the Great War, there was in particular a suspicion that secret PoW camps existed and that the ICRC helped to hide them. The second idea concerns the place of humanitarianism between those promoting war and those promoting peace. The ICRC was criticised not only by the belligerents, but also by the pacifists, for whom the aim of "humanising warfare" was an illusion and the only truly valid goal was to end it. This is why the pacifist movement saw as an affront the fact that the ICRC was awarded the Nobel Peace Price in 1917. According to Annette Becker, this two-fold opposition to the humanitarian idea in the 14-18 war, allied with the amnesia surrounding the civilian victims following the armistice, made a significant contribution to convincing those who were preparing the next conflict of their impunity.
Catherine Deman, political adviser, Operations division, International Committee of the Red Cross: "The legal notion of occupation and its operational implications: the ICRC experience"
Catherine Deman underlined the importance for the ICRC of not straying from the legal definition of occupation, as enshrined in the fourth Geneva Convention and universally accepted. The broader factual definition adopted by MSF in its study and proposed for the symposium could be a source of confusion, in that taking control of a territory and its population by an army is not specific to the legal definition of occupation and in fact covers most war situations.
From the viewpoint of international law in general and humanitarian law in particular, there is only an occupation if the occupying power and the occupied territory are both subject to international law, in other words are two States or two entities with international status. Furthermore, the military control exercised by the first over the territory of the second must be against the will of the latter. This definition does not apply to peoples who have not acquired statehood, except for those which the United Nations General Assembly in the 60s and 70s recognised as having an inalienable right to self-determination. Catherine Deman nonetheless pointed out that attributing international status to national liberation movements recognised as being representative of a people, was specific to a particular period in history – now over – linked to the entry of recently decolonised countries into the United Nations. In effect, this recognition concerned only a small number of entities.
Legal recognition of an occupation situation has important ramifications both for the obligations incumbent upon the occupying power towards the civilian population, as well as for eventual resolution of the conflict and the issue of reparations. According to Catherine Deman, legal recognition may thus have a concrete effect on the situation. For the occupier, it entails a ban on annexing the occupied territory and the obligation to administer this territory in the interests of the civilian population, ensure its protection and meet its essential needs. In the longer term, the obligation is to restore the normal working of the public infrastructures and facilitate the development of the occupied territory. To this is added a ban on modifying the structure of the territory in terms of its institutions, its organisation and its demography. These requirements are safeguards against exploitation of resources or transfer of populations in the territories concerned, although the question of whether they are actually followed remains open.
For the ICRC, the legal status of occupation offers additional legal tools on top of those applying to general conflict situations. These tools, when used to remind the occupying power of the need to meet its obligations, may help limit the particular humanitarian problems created for the civilian population by the presence of settlers or the lack of supplies. Outside this legal framework, particularly in internal conflicts, protection of the populations will depend on other sources of law (law linked to the conduct of hostilities, internal law, international human rights conventions). The main reason the ICRC adheres to the legal definition of occupation is to avoid undermining its application. Most States attempt to contest the applicability of the Fourth Geneva Convention in order to sidestep their obligations. Widening the use of the notion of occupation simply leads to more and more parties claiming that it is not applicable, thereby making it harder to ensure its implementation.
Catherine Deman mentioned another reason for following the legal definition: the recent tendency to differentiate between “good” and “bad” occupations, a distinction centred on the concept developed by certain Anglo-Saxon jurists of "transformational occupation", which runs totally contrary to the spirit and the letter of the fourth Convention. Here again, broadening the definition encourages confusion and justifies a questioning of the existing legal framework. The actions of the ICRC, based on a constant search for balance between the protection that stems from having the authorities recognise the applicable law and their responsibilities, on the one hand, and assistance to the populations on the other, depends on this legal framework. It is that which, without any possibility of contestation, justifies intervention by the ICRC on the basis of its mandate, because recognising an occupation implies the existence of an armed conflict. It is also this framework that marks the boundaries of the types of assistance to be provided, which for example rules out contributing to any action from which the occupier is prohibited, even if it would seem to be in the immediate interests of the civilian population.
Despite the rules established by this legal framework, the ICRC is nonetheless faced with a number of dilemmas common to all humanitarian actors: what balance can be found between substituting local authorities and pressing them to fulfil their responsibilities? Is there complicity in violation of the law when assistance mitigates its effects while enabling it to continue? How to force recognition by one party which has no political desire to do so or which would be disadvantaged by the law in a situation of asymmetrical warfare? In this respect, Catherine Deman mentioned the case of the Hamas fighters (before their party's electoral victory) for whom wearing a uniform to distinguish themselves from the civilian population would be tantamount to suicide. The ICRC is also faced with the more recent problems linked to acceptance of humanitarian aid, when the aid is not perceived as neutral and impartial, particularly owing to the presence of western armed forces or the large variety of organisations claiming to be humanitarian. These difficulties also come at a time when the general context is one of promoting an integrated approach, conceived as an interweaving of the political, military and humanitarian components.
Catherine Deman concluded by restating the concept of neutrality as perceived by the ICRC, which she distinguishes from impartiality and confidentiality. Neutrality is an attitude towards the belligerents, which implies serving no cause other than that of the populations who are the victims of the conflict. Impartiality is aimed at the populations themselves and constitutes the framework within which assistance will be provided to them. Finally, confidentiality is a means chosen by the ICRC for dialoguing with the parties to the conflict. Speaking out does not necessarily run contrary to neutrality if it applies the same requirements to all the belligerents.
Bernard Juan, General Secretary of Médecins du Monde:
"For true humanitarian diplomacy: the population protection issue for MDM"
Bernard Juan started out by declaring that the question of occupation was not the subject of any specific debate at MDM, with the analysis being focused more on conventional notions of crisis, oppression and the elements considered to be pertinent to the post Cold War conflicts: simmering conflicts, ethnic, religious, racial, etc. problems. Without looking to define the notion of occupation, Bernard Juan tried more to show how certain conflictual political situations, spontaneously associated with the idea of occupation, fell into line with MDM's current concerns, in terms of politics and principles, as well as the more concrete concern of how to respond in the field.
He first of all situated these cases in a general context that he referred to as the "end of the humanitarian exception": the end of clandestine actions in the 80s, particularly in Afghanistan, giving way to official missions, implying a work of representation and requests for authorisation; confusion between independent humanitarian action and state humanitarian policies, between humanitarian and military actors and between humanitarian and evangelist organisations. In this context, the problems faced by MDM are linked to the fact that the "occupiers" are frequently the great powers and consequently the influential players on the international stage and in the United Nations. This problem implies others, such as the search for financial independence from the interests of the funding agencies or clarification of the role of MDM in the eyes of the belligerents and of the civilian populations. This latter preoccupation is linked to the question of the safety of the teams and the values defended by MDM. Offering the example of Chechnya, where MDM remote-controls programmes run by Chechen teams, Bernard Juan defended the idea that this solution to the problem of expatriate safety also helped local development of associative and militant networks. This network development process, even if frequently limited to a region, clan or party, is the pre-condition for active security based on empathy with the civilian populations, who then become the guarantors of humanitarian staff protection rather than the security rules imposed on the teams.
Bernard Juan nonetheless feels that MDM does have a role to protect the population in return, in which he includes defence of the right to health care for all or, in the case of the Palestinian Territories, the right to self-determination. The definition of its actions traditionally employed by MDM, "to help, care and bear witness" is not sufficient for this role. It then becomes necessary to undertake what he called "humanitarian diplomacy", a notion developed by the ICRC but from which he adopts a certain distance in refuting the principle of neutrality for MDM. This principle, to which he prefers that of legitimacy, runs contrary to his perception of commitment to the victims and a choice of action determined by limited financial, logistical and human resources.
SUMMARY OF THE DEBATES
The debates generated by the morning's speakers highlighted the question of the humanitarian players' attitudes to law and to neutrality. These two problems would seem to varying extents to divide the positions of the various parties over the specificity or otherwise of occupation situations, the core issue of the symposium.
From the point of view of the ICRC, represented by Catherine Deman, it is above all the law itself that creates the specificity of occupation situations. Recognising the applicability of the legal framework of the occupation helps to identify specific responsibilities, in other words the additional obligations on the occupying power, which constitute additional tools for protecting the populations. For the ICRC, the issue of this legal definition is thus to know whether or not it has these extra tools, an aspect that makes the legal framework one of the key factors in analysing the context. The conditions for ICRC intervention in Chechnya are thus to a certain extent determined – and limited – by the fact that the legal framework of occupation does not apply there. It is also with reference to law that Catherine Deman defended the principle of neutrality. The credibility of the ICRC's positions concerning the applicable law, in this case the recognition of a legal situation of occupation by the belligerents, depends on its neutrality towards them, which consists in only speaking out with regard to their attitude towards the populations. In return, according to Danielle Coquoz, head of delegation for the ICRC in France, relying on law is a way of preserving one's neutrality in the face of such a politically charged question as that of occupation. The law enables one to state that the Palestinian Territories are occupied, while a similar statement concerning Chechnya is seen as taking political sides.
Although Bernard Juan recognised the importance of applying law, he pragmatically sees this as a possible tool for negotiation and above all as a demand for justice and reparations for the victims of a conflict. However, in his opinion, the fourth Geneva Convention does not reflect the reality of warfare and the limits of humanitarian law cannot be accepted as the limits of the humanitarian action taken by MDM. On the contrary, the goal is to fight to create new rights. We can thus understand his rejection of neutrality as a refusal to accept the limitations of the existing legal framework. MDM has to focus its limited resources on defending values and extending the recognised rights of the populations. For Bernard Juan, defending this concept of humanitarian action has become harder since the end of the Cold War, particularly in recent years. He preferred not to speak of the specificity of occupation, but rather the specific aspects of remote-controlling operations in Chechnya and the fact of having to negotiate with the Russian authorities in Chechnya or the Americans in Iraq, in contrast to the humanitarian missions of the 80s, particularly in Afghanistan. Jean-Baptiste Richardier, Director general of Handicap International, stated a similar position, stressing the shrinkage of the humanitarian space as something specific to the present time, once again with reference to Afghanistan in the 80s, where the safety of the humanitarian teams relied on a pact with the populations and their leaders. The perception of the neutrality and the singularity of humanitarian interventions has today been degraded.
A number of MSF representatives referred to the notion of totalisation of conflict introduced by Annette Becker to underline the limits of humanitarian law, both in its ability to clarify a given situation and its practical effects for the humanitarian actors in occupation situations.
Loïc Barriquand, Director of human resources at MSF, compared occupation law with that of refugees, which does not apply to displaced persons, despite comparable situations. For him, the situation in Chechnya is in all respects comparable to an occupation, owing to the behaviour of the Russian army. Here also, there is a totalisation of the conflict. It is this difficulty in choosing between the political and legal definition of occupation, both of which are equally legitimate in his opinion, that led Rony Brauman to consider the notion of occupation as having little pertinence. From the point of view of the humanitarian actor, any occupation situation is a war situation and it is the general context of war that underpins the legitimacy and specificity of humanitarian action. The notion of totalisation of the conflict should however attract the attention of the humanitarian organisations and in this respect is no doubt more relevant than the notion of occupation, in that it indicates, not necessarily generalised terror, but the involvement of an entire society in the logic of conflict.
For Jean-Hervé Bradol, the law itself is not immune from this logic of totalisation. In his opinion, using law to claim that there is no occupation in Iraq or in Chechnya can only be seen by those wishing to liberate these territories as a political stance in favour of the camp opposed to their own. He therefore expressed doubts over the remark by Danielle Coquoz on the ability of law to preserve the neutrality of humanitarian workers in this type of situation. However, like Rony Brauman, Jean-Hervé Bradol underlined the importance of humanitarian law as a point of reference which is generally capable of defusing certain situations. Unlike the position put forward by Bernard Juan, they see law as a necessary bulwark against the claims of values and the moral imperative, which more often than not lead to radicalisation of conflicts. Law nonetheless remains a fragile and sometimes confusing yardstick.
Annette Becker was astonished by the concern on the part of the humanitarian organisations, as Bernard Juan mentioned in his presentation, to be protected by the populations rather than attempting to protect them. She recalled the original concept of neutrality, which gave birth to the ICRC and humanitarian law. The founding notion was that of the neutrality of the victim and it is from this that stems recognition of the principle whereby this neutrality of the victims should be extended to take in those who assist them. The immense complication of occupation situations is that the victim is anything but neutral. Throughout the 20th century, the victims of occupation have taken sides against the occupier and thereby forfeited their neutrality.
In accordance with this historical reference, Rony Brauman underlined the confusion today surrounding the notion of neutrality. Whereas historically, neutrality was linked to a precise place – where victims were given care – on behalf of precise persons – the injured and prisoners of war considered "hors de combat" – this notion is now open to a variety of interpretations. In his opinion, the prevailing and misleading view of neutrality is that which, during the Ethiopian famine of 1984-86, justified simply standing by the victims without questioning the use of humanitarian aid against them. This paradox around the notion of neutrality is paralleled by that which, in his eyes, affects humanitarian law. Humanitarian law was founded at a time when a valid and essential distinction was recognised by States between combatants and non-combatants. Yet, from the 1914-18 war and the advent of total war on, it has been confronted with a blurring of this fundamental distinction. Throughout the 20th century, the dividing line between combatants and non-combatants has become increasingly unclear. However, he felt that the idea defended by Bernard Juan and Jean-Baptiste Richardier, in which access to the victims is far harder today than in the past, was an error of perspective. Recalling the numerous security incidents and the operational limits on the clandestine action in Afghanistan in the 80s, he issued a warning against an idealised retrospective reading of humanitarian action of that period. A misreading of the past also leads to the NGOs being inaccurately painted as among the victims of the current general context. On the contrary, there never were as many emergency aid workers in as many fields as has been the case since the end of the Cold War.
Although they stressed present difficulties, Bernard Juan and Jean-Baptiste Richardier both considered that the paradox of the protection of aid workers by the populations, raised by Annette Becker, was not however a new one. For Jean-Baptiste Richardier, the protection humanitarian NGOs are likely to provide is not that stipulated by law, but more the care offered and the support for the populations on a long-term basis. For Xavier Crombé, this protection paradox is nonetheless worth looking at a little more closely: while occupation law focuses on the specific obligations of the occupying power, the protection that the aid workers expect from the populations relates to the threat posed to them not from the occupiers, but from the groups in opposition to the occupation. In Iraq as in Afghanistan, it is the armed groups which consider themselves "occupied" that are targetting the humanitarian organisations. As for the prevailing insecurity in Chechnya, it stems as much from the Russian army as from the Chechen resistance. The neutrality of the humanitarian organisations depends on how it is perceived by all parties to the conflicts and their political and tactical interest in recognising it. In Afghanistan, under Soviet occupation, it was however the western NGOs' apparent siding with the occupied, rather than any recognition of their neutrality, which led various Mujahideen groups to offer them protection.
The question of protection in occupation situations also depends on how the humanitarian organisations relate to humanitarian law. For Danielle Coquoz, if there is no violation of the law, nor crimes exclusive to occupation situations, one can in practice and regardless of the legal definition, observe a certain number of constants, a number of abuses or potential abuses in certain situations, which can have a considerable influence on the choice of possible actions for the aid organisations. These constants include: arrests, either on a large scale, or over a period of time; excessive controls and obstacles to the daily life of the populations; a growing stranglehold by the security services, incentives to or pressures for collaboration and a temptation to opt for collective punishment. In an occupation situation, and particularly one that lasts, the civilian population is quickly considered to be a hostile one, leading to abuses and controls. Although in many conflicts areas usually remain where it is possible to provide care and assistance at a distance from the conflict itself, the phenomenon of totalisation linked to the occupation, whether or not legal, means that the dilemmas of protection cannot be avoided by the humanitarian organisations. It is the core nature of these particular dilemmas that make such situations specific. With protection at the heart of its mandate, the ICRC responds to these particular issues, as to many others, through the law. This is not however the case with all humanitarian organisations.
The tensions within the humanitarian teams must no doubt be looked at against this backdrop of frustration arising from these particular protection dilemmas, the inability to have the law applied or the refusal to accept its limits and the operational limitations on care and assistance. Jean-Hervé Bradol opened the symposium on this subject. With no legal framework or viable space for provision of care, the humanitarian teams are tempted to turn towards military force, no longer with a sole focus on the victims of the conflict, but in order to act upon the conflict itself and its causes. Then, depending on the situation, the occupation is either denounced, with demands for withdrawal of the military forces, or called for in the form of an intervention by an outside military force. With regard to humanitarian action, does not the specificity of occupation or totalisation of the conflict lie in this refusal to accept one's own limits?
Xavier Crombé, Head of research, Médecins Sans Frontières Foundation:
"Occupation as a revelatory event: responsibilities and limits of humanitarian work according to MSF"
Xavier Crombé presented the conclusions of his study of humanitarian action in occupation situations by recalling the MSF view, which is that of a political reading of a situation, with analysis of humanitarian responsibility within this context. From this point of view, the study showed that occupation did not constitute a category of specific situations for humanitarian action. It is however particularly capable of revealing the limits and contradictions of this action.
The history of MSF's relations with occupation situations covers three main periods. The first, running through the 1980s, was marked by the occupations of Cambodia by Vietnam and Afghanistan by the Soviet Union. The positions adopted by MSF in this context reveal a dual political and philosophical heritage: defence of the right of peoples to self-determination and, above all, anti-totalitarianism. Denouncing the crimes of these two occupiers was in fact a way of denouncing the crimes of communism and the totalitarian systems that it spawned. MSF then assumed its partisan position. However, two limits on this humanitarian commitment against totalitarian occupiers should be mentioned. The first is a limit of principle concerning the support given to groups opposing the occupation: MSF refused to work in the refugee camps controlled by the Khmer Rouge and on several occasions suspended its operations in Afghanistan when it felt that unacceptable restrictions were placed on its access to the civilian populations particularly women. The other limit is a practical one, in that humanitarian assistance was most significant not on the field of battle, but more around the fringes, that is in the refugee camps. It was in these camps, faced with overwhelming needs, that the need for professionalisation of humanitarian work arose.
The second period was that of the 90s: this was characterised by the new role of the United Nations, both a humanitarian and a political player in the conflicts, and by the large number of international military interventions mandated by the Security council. MSF found itself facing new challenges: on the one hand, the values defended by MSF during the previous period now justified international politico-military interventions – defence of human rights and democratic values, supply and protection of humanitarian aid; on the other, the UN and the intervention forces mandated by it wanted to impose their agenda on the humanitarian organisations. The search for or indeed the imposition of peace, in particular, was presented as a higher goal determining whether or not humanitarian aid was let through. It was criticised and sometimes even blocked by military force, to prevent it reaching areas where it could potentially benefit the designated enemies of peace. MSF was gradually to clarify its identity by focusing on the principles of independent humanitarian action, setting aside political values (human rights and democracy), as they could henceforth justify obstruction of its actions.
The NATO intervention in Kosovo was to be a crucial turning point: it was the first explicitly offensive operation against an identified enemy, conducted in the name of humanitarian principles. Furthermore, this operation from the outset involved placing a territory under international control, combining a military presence with a civilian reconstruction plan in which NGOs were to be involved. The challenge facing MSF was then to define action which provided effective answers to the consequences of the conflict on the civilian populations, while remaining outside the political framework of the intervention and reconstruction programme. In this respect, the interventions in Afghanistan and Iraq, as part of the "war on terror" are more a radicalisation of the problem that emerged in Kosovo than a completely new situation. This radicalisation is mainly visible in the way that humanitarian work is now presented from Washington to London as being part of the war effort and playing a natural role in the Coalition camp.
The way the notion of occupation is used in MSF's internal debates and outside positions is however more specific than could be suggested by the presentation of this general framework and refers, not to the legal notion, but to a set of violence, humiliation and arbitrary acts inflicted on the civilian populations by military forces. Reference to occupation is rarely made at the time of deciding whether to intervene or not. In the same way as for the ICRC, it is the existence of a conflict, whatever it is, which for MSF justifies organising an aid operation. Instead, this reference points to the dilemma that occupation situations create over time for humanitarian action, as conceived by MSF.
If the conflict persists in theory with the presence of the occupier and manifests itself in the violence inflicted on the civilian populations and the guerrilla actions conducted by the opposition groups, for certain periods and in certain areas, occupation also allows a relative normalisation and even certain forms of reconstruction. Reconstruction and the operation of health structures in particular, then raise issues of political legitimacy which force MSF to question the definition of its role, its responsibility and the nature of its programmes, whereas the general framework of the conflict would seem to justify its continued presence. Furthermore, a situation in which the violence inflicted mainly takes the form of targeted imprisonment, execution or assassination, cannot be dealt with through medical care. Consequently, several of the withdrawals decided on by MSF (Liberia, Kurdistan and Somalia in 1993, Afghanistan in 2004) were the result both of growing insecurity characterised by targeting of both civilians and NGOs, and a questioning of the validity and effectiveness of the work being done. In this, occupation reveals the limits of MSF's usual analysis framework ("conflict programmes", "post-conflict programmes", and so on) but also, through the ambivalent and frequently conflictual relations between the MSF teams and the occupiers, the more general question of the relationship between NGOs and States.
Xavier Crombé thus proposes an alternative look at the historical evolution of how the notion of occupation is interpreted in relation to the changing concepts of the role of the State. If the Hague conventions of 1899 and 1907 only took inspiration from the law of nations to regulate relations between the occupier and the occupied populations, it was because war was seen as a matter between States, far from the civilian populations, and the State – both in time of war and time of peace – should interfere as little as possible in the private lives of the citizens. The totalisation of conflict resulting from the national wars of the first half of the 20th century significantly altered this view of things, by blurring the lines between civilians and combatants, particularly in occupation situations, as was demonstrated by Annette Becker. If the Fourth Geneva Convention of 1949 marks the desire to redefine the responsibilities of the occupying forces in relation to the atrocities committed during the preceding world wars, the extent of the obligations imposed on the occupier with respect to civilians is no doubt linked to the advent in western democracies of the Welfare State, at the same time. The current trend towards privatisation of the functions assumed by the State within the framework of the Welfare State model, is redefining the sharing of responsibilities between the State and private actors which prevailed after the Second World War. This change has implications for the notion of occupation. In Palestine, Iraq and Afghanistan, the NGOs were thus actively sought out to deliver services, in particular health and social services, in the place of and even in the name of the occupying power or local authority.
Occupation can no longer be seen simply through the occupier/occupied relationship, but must take account of the large numbers of players who are today involved. This new situation makes the respective responsibilities of the various parties extremely confusing for the civilian populations as well as for the belligerents and the humanitarian organisations themselves.
Stuart Gordon, Professor at Sandhurst Royal Military Academy:
"Civil-Military Co-operation and Belligerent Occupation: New Paradigms, Problems and Presumptions?"
The perspective adopted by Stuart Gordon in his paper is that of the challenges posed by the situation of belligerent occupation for the civil-military relations. He first of all recalled the circumstances in which the "humanitarian partnership paradigm" emerged. The development of civil-military cooperation began, for the European and North American armed forces, with the United Nations protection force in Bosnia as of 1992. In this conflict, the mandate given to the armed forces by the Security Council was to preserve a humanitarian space. It put them in a situation in which they would interact with the NGOs and these interactions convinced the military that their interests converged with those of the humanitarian organisations, all the more so after the Dayton accords, when the NGOs' emergency programmes were transformed into reconstruction and development programmes, seeming to confirm their ability to exert a stabilising influence. Furthermore, many NGOs expressed their desire for dialogue with the military, which they felt to be a precondition for dissemination of humanitarian principles. From the viewpoint of the military, however, these overtures indicated the possibility of common stabilisation strategies. Stuart Gordon nonetheless admits that the chiefs of staff are at least as protective of their technical military space and their freedom of action as are the NGOs of their humanitarian space and sometimes attempt to force the humanitarian agencies to fall into line with their own objectives.
The expectations on the part of the armed forces were forged by the legacy of the counter-insurgency strategies employed in the colonised territories. In particular, the British Army's success against the communist guerrillas in Malaya (Malaysia) in the 1950s was, according to Stuart Gordon, the origin of an enduring myth concerning the effectiveness of the "hearts and minds" projects in ensuring the protection of the armed forces. Although the strategy employed in Malaya consisted less in winning hearts than in controlling the population – and indeed proved effective in that regard – the interpretation made of it explains the desire of armies to undertake community rebuilding projects with a two-fold goal of stabilisation and of protection of their own forces. Stuart Gordon nonetheless felt it necessary to recall that the humanitarian partnership paradigm is part of a governmental perception of the trans-national nature of the threats with which they are now faced: environmental problems, poverty, epidemics, migrations, all of which are security issues on which governments believe that NGOs could be profitably put to good use. The NGOs themselves have also contributed to perpetuating this idea by promoting their ability to act on the causes of these problems. This new assessment of the threats has also led to a new military concept – effect-based operations – consisting in acting on the enemy's network through potentially non-military instruments in order to weaken its cohesion. This concept, which justifies the control or destruction of civilian equipment and infrastructures, also has implications in terms of instrumentalising humanitarian work for military purposes.
All these changes thus helped convince the military that it was crucial to develop interactions with civil agencies if they were to be able to carry out their missions. In effect, in most western armies, but also in other countries, one can see the creation of large bureaucracies dedicated to managing civil-military relations. Faced with this growing trend, Stuart Gordon believes that the humanitarian partnership paradigm can take two forms: that of "cooperation" which would see humanitarian action subjected to the political goals of governments and their armed forces, in particular stabilisation, and that based on a principle of differentiation between NGOs ready to respond to requests from governments and work for their strategic goals and those with exclusively humanitarian objectives, whose independence is recognised and respected. Although he is a supporter of this differentiated approach, Stuart Gordon nonetheless stresses the fact that States and NGOs alike are mutually responsible for clarifying this difference.
For the humanitarian movement, these new issues are particularly acute today in Iraq and Afghanistan. Stuart Gordon feels that the salient aspects of these two contexts are the following: the main donor states are themselves parties to the conflict; references to occupation are extremely politicised and often tied with a broader opposition to the war itself; in both cases, the occupations did not put an end to the conflict and counter-insurgency campaigns are continuing; finally, the civilian capacity of the United Nations and indeed the States themselves have proven to be inadequate to ensure transition from war to a lasting peace, thus requiring the military to intervene directly to rebuild the infrastructures and essential services of the countries. This latter points leads us on to the broader problem of the response to "failed States", in which the role devolved to the military frequently obliges them to carry out duties for which they do not have the necessary skills.
From this point of view, Stuart Gordon considers that the Provincial Reconstruction Teams (PRT) are both a necessity and a very real problem. Faced with the weakness of the civilian capability, the PRT – under military command - appear to be necessary to bridge the gap between the aim of stabilisation and the prospects for reconstruction of the country by a local authority. The problem lies in the fact that involvement of the military in community level assistance or reconstruction projects is usually counter-productive, technically, politically and tactically. Stuart Gordon recommends limiting the role of the PRT to rebuilding and reforming the security sector, by encouraging local capabilities in these areas. This would enable a clear dividing line to be drawn between the role of the PRT and that of the humanitarian agencies on the one hand, and the other agencies more interested in reconstruction and local civilian capacity building, on the other. He nonetheless recognises that humanitarian organisations are faced with numerous questions in this type of situation: what attitude to adopt toward the occupiers – both civilian and military – implying a choice between a position of complementarity or one of highlighting their responsibilities; the need to preserve an equal distance between the various parties to the conflict; the increasing confusion arising from the growth of private security companies. However, he does feel that the NGOs are naive in claiming that these private companies and the PRTs are the sole cause of their worsening security conditions. This is the result of a large number of factors, including the behaviours of the NGOs themselves.
Stuart Gordon concluded his presentation by tackling the question of international humanitarian law, in particular how the military deal with the obligations of the fourth Geneva Convention. For most armies, international humanitarian law has only been envisaged from the perspective of the law for combatants and the rules of engagement, ignoring obligations with respect to the civilian population and how to interact with other parties in fulfilling these obligations. Although the experience of Afghanistan and Iraq has led the military to take greater account of these aspects, confusion remains within military institutions over the difference between legal obligations and humanitarian action. The differentiated approach between NGO clusters, which would recognise the specificity of the strictly humanitarian agencies and their need for independence, would also promote greater understanding by the military of the full scope of the Geneva Conventions.
Pierre-Antoine Braud, head of research, Institute for Security Studies:
"Occupier or proxy? International interventions in the DRC"
Talking about his personal experience as political adviser to the MONUC, Pierre-Antoine Braud presents the situation of the Democratic Republic of Congo (DRC) as a case of uncertain "UN occupation", which he summarises as an "illusion of tutelage".
In absolute terms, the resources deployed by the United Nations in the DRC are significant: one billion dollars annual budget, a peace-keeping force which reached up to 17,000 men, mainly in the east of the country … However, the scale of these resources remains inadequate given the size of the DRC and cannot make up for the structural limits encountered by the international community in its ability to influence local dynamics. According to Pierre-Antoine Braud, we are seeing a dual fragmentation of both players and sectorial politics. The international presence does not involve the UN alone and there are also the embassies of the funding States, the NGOs and the representatives of the multilateral funding groups. This plethora of intervening actors serves to dilute responsibilities and water down the consistency of the policies implemented. The attempts to integrate and coordinate these numerous stakeholders are made according to sectors, following a standardised approach entailing a cease-fire, followed by a power-sharing agreement, then a period of transition, which should lead to presidential elections meant to complete the advent of a stabilised State. Within this general sequence, the process of disarming, restoration of the institutions, education programmes, etc., are all topics requiring coordination among the international actors. The consequences of this dual fragmentation are on the one hand, to multiply bureaucratic logics, often juxtaposed with the local institutions and dynamics, which are largely ignored, and on the other to create many spaces enabling the national actors to exploit the international intervention.
At the national level, the prevailing principle among those staking their claim to power is one of “winner takes all”, in contradiction with the international concept of presidential elections as being a factor in stability and power-sharing. In the provinces, the search by the international players for representative persons capable of influencing the local dynamic frequently leads to over-simplification. We then see the fabrication of representatives with no true legitimacy and a lumping together of very different local players. Pierre-Antoine Braud asks that the strategies produced by the Congolese players be reconsidered from a historical perspective, recalling the country's long history of relations with a foreign presence, particularly a colonial one. The international approach in the DRC is however based on a short-term view. Its ambitions are limited to achieving apparent order, to confirm the success of the process and above all justify the expense incurred and the operational choices made. The presidential elections are presented as the high point of this process of a return to order, whereas the Congolese themselves see this as the starting point for a reduction in MONUC civil and military personnel and gradual disengagement by the international stakeholders. Pierre-Antoine Braud mentions an example of corruption concerning the inflation of the national armed forces manning figures. These diversions of international funds primarily benefit the government, and therefore the President's party. From the viewpoint of the other parties, whose men are to be reincorporated into the national army, the absence of sanctions against these practices encourages them to maintain parallel command structures and keep their own weapons.
For the international forces in charge of supervising the security sector, the lack of resources and personnel encourages them to tend towards a degree of political realism: leave the existing Congolese balance of power in place and even, through abstention, encourage the faction one supports, giving it freedom of movement to consolidate its position. When faced with an attitude such as this, the question is whether the international forces have become nothing more than proxies of the Congolese factions. Pierre-Antoine Braud is more inclined to see a convergence of interests at work here. Thus, in the rebel zones, the deployment of the national army, which is in principle unified but in fact dominated by the party of President Joseph Kabila, benefits the presidency in legitimising extension of its control over the east of the country. This also serves the interests of the international promoters of the peace process, who see in this a demonstration of the legitimacy of the national army they financed and an opportunity to off-load some of the responsibilities hitherto borne exclusively by MONUC. This is also a means of escaping criticism in the event of abuses committed against civilians, as was the case in Ituri, or avoid direct confrontation between the international forces and Rwandan armed groups, as happened in Kivu. There is therefore a growing temptation for MONUC to hide behind the national army.
This unacknowledged transfer of responsibility does however have its limits and in 2004, popular riots broke out against MONUC, condemning its inability to defend a town after it was captured by a rebel general. Not everyone is content with this "illusion of tutelage". The deployment of MONUC created expectations on the part of the Congolese population, who cannot accept an admission of impotence. One must however face the facts that the initial objectives of the international intervention have been clearly, albeit implicitly, scaled down, with talk of good governance and democratisation giving way to simply restoring the authority of the State. Although the various Congolese factions are perfectly capable of talking about democracy in order to protect appearances, the western powers involved in the peace process are now concentrating on the security and stabilisation aspects, which leads them to reinforce the power in place: the Kabila regime. Realism therefore means that the option adopted is one of a strong and centralised government, without worrying about the nature of this government, which, from Leopold to Mobutu and up to Laurent-Désiré Kabila, is in fact the heart of the Congolese problem. In this configuration, the role given to the NGOs is based on the postulated link between development and security and consequently must itself also contribute to restoring the authority of the State.
Caroline Abu-Sada, researcher, doctor in political science (Institut d’Etudes Politiques de Paris): "Legitimacy issues: the influence of the international community in defining the Palestinian State."
Caroline Abu-Sada takes the example of a Palestinian NGO, the Palestinian Agricultural Relief Committee (PARC), to analyse the relations between the Palestinian associative sector, the international community, the Palestinian Authority and Israel, as the occupying power. Through this approach, which sheds light on a complex reality comprising numerous players, she demonstrates that humanitarian aid may have many other perverse effects than simply benefiting the occupier.
PARC was set up in 1983 at the initiative of three agronomists affiliated with the Palestinian communist party, the only party that existed at the time – albeit underground – in the Occupied Palestinian Territories (OPT). Caroline Abu-Sada recalls the context of this creation: at the time there was no Palestinian authority, the Palestinian territories had been directly administered by Israel since 1967 and, as of the end of the 1970s, subject to a new policy favourable to the settlers. The Israeli government in fact based this policy on a 19th century Ottoman law, which stated that any land not cultivated for three years fell into the public domain. This change in the forms of occupation made land the central issue in the conflict. The creation of PARC was thus in response to a two-fold objective: the aid it intended to provide to Palestinian farmers was to help develop their means of subsistence, but also to anchor them on their land, thereby resisting the occupation by opposing the expropriations that led to the subsequent settlements. PARC worked by creating committees of agronomists, women and farmers deployed throughout the OPT, which enabled it to play a front-line role in assistance to the Palestinian population, particularly with regard to food, during the first Intifada that broke out in 1987. In the absence of a national authority, the proven effectiveness of these committees ensured that PARC received the political support of the PLO in exile and financial support from NGOs and international agencies.
In the early 1990s, this success was echoed by the increased interest in the role of "civil society" following the fall of communism and the calls for structural reforms. However, the political issues of the Oslo agreements convinced international donors to concentrate their financing on the new Palestinian Authority (PA), in charge of continuing the peace process with Israel. This new situation implied a drop in the funding previously allocated to the Palestinian NGOs, who adopted three types of strategies in their dealings with the PA: integration, partnership in drafting national policy, or opposition. PARC refused to join the Ministry of Agriculture, preferring to adopt a position as a counterweight. As of 1996, however, the Palestinian NGOs began to be looked on favourably again by donor states, who were beginning to realise the scale of the corruption and nepotism generated by the large-scale yet unsupervised financing of the PA. A redistribution of international financing thus took place in favour of the NGOs.
For Caroline Abu-Sada, the 1990s were therefore characterised by a series of choices made at the initiative of the international community, alternatively in favour of the Palestinian Authority or the local NGOs. These decisions were motivated by a changing perception of what the Palestinian Authority – and the Palestinian State of which it was the forerunner – and Palestinian civil society should be. This perception itself borrowed from a more general view of the rather undemocratic nature of the political regimes in the Arab world and, when seen from the perspective of the peace process, gave civil society the role of counter-balancing Fatah, who held power, and even more so Hamas, whose influence was constantly growing. The prevailing situation at the time the second Intifada broke out, marked by an often imbalanced distribution of responsibilities among the PA and the NGOs and an orientation of NGO programmes towards long-term and development activities, owes much to the choices made by the international donors.
The second Intifada and the nature of the riposte by the Israeli army, had significant consequences for the balance of power between the PA and the NGOs. Initially, the Palestinian NGOs struggled to reorient their programmes to deal with an emergency situation, but the Palestinian authority was reduced to a situation of complete powerlessness. Besieged in Ramallah, it did not have the means to meet the needs of the Palestinian population, in particular as the blockading and division of the territories carried out by Tsahal prevented it from accessing almost 70% of the OPT. For its part, PARC was again able to prove its effectiveness by reactivating its network of committees, which enabled it to act, despite the blockages, both in Gaza and the West Bank. This advantage was reinforced by the international financial support it received in particular from the international NGOs who were back in the OPT, between 2000 and 2002.
The imbalance is today manifest between the resources of PARC and a weakened Ministry of Agriculture (18 million dollar budget per year for PARC as against 11 million for the Ministry). Donor agencies have been receptive to the pronouncements of this Palestinian NGO, which draws extensively on the currently fashionable topics of good governance, transparency or gender, and their support has thus continued to grow. WFP thus assigned it the task of distributing all food aid. PARC however refused to play the sectorial coordination game ordered by the funding agencies, thus condemning to impotence the Ministry of Agriculture, which was supposed to coordinate the actions of the NGOs in this sector. The influence and the resources accumulated by PARC ended up convincing its leaders to enter the political arena, taking advantage of the extensive social base provided by its committees. This change led certain donors, including the WFP, to revise their judgement and adopt a certain distance from this NGO. Nonetheless, this was not enough to change the balance of power between PARC and the PA.
Caroline Abu-Sada concluded her presentation on a critical note with respect to the international community. Its enduring support for Palestinian NGOs such as PARC, alternatively for reasons of expediency or as a matter of principle, has run contrary to the stated aim of building a Palestinian State. To her, this remark invokes a number of more general questions: concerning the position of neutrality claimed by the international aid organisations, how is one to interpret their extensive support for an NGO with known political affiliations (the communist party for PARC) with the aim – in some cases clearly stated – of blocking Hamas? It is today common to consider that the NGOs, active members of civil society, are necessary to make up for the shortcomings of a State. So what happens when the State does not yet exist? Can support for the Palestinian NGOs really contribute to the eventual construction of the State or does this actually constitute an obstacle to this process? Finally, Caroline Abu-Sada drew attention to the largely overlooked consequences of the international presence on Palestinian society: this has in effect created a new Palestinian social class comprising of management level staff working in the international NGOs and UN agencies, who enjoy easy travel within the OPT and abroad, whereas the majority of Palestinians are subjected to a complex regime of permits which prevents them from travelling even from one town to another. International aid is thus also a source of inequality between Palestinians in the face of the occupation.
SUMMARY OF THE DEBATES
The afternoon's speakers provided new elements to the debate, in particular by considering humanitarian organisations no longer as holding a status of externality in conflicts, but as fully-fledged players in situations in which they interact with a variety of political and military stakeholders. The cases of the DRC and the Palestinian Territories also encouraged an examination of how to distinguish between occupation situations, based on these two contexts but also with reference to the occupations of the Great War, described in the morning by Annette Becker. Here again, the extent to which these distinctions are seen as meaningful ones depends on the logic adopted by each player, those of the various humanitarian organisations as well as that of a regular western army, as presented by Stuart Gordon.
To open the debate, Marc Le Pape expressed his surprise at the fact that the papers on the DRC and the Palestinian territories had not highlighted any aspect that seem specific to these occupation situations. On the contrary, the overall impression was that of "business as usual" for the NGOs. Xavier Crombé sees this general impression reflecting the fact that the notion of occupation is still to a large extent perceived with reference to the historical experience of western societies during the two world wars. However, the number of parties involved in the present cases, their changing roles and responsibilities, particularly with regard to the NGOs themselves, transform the reality and the experience of occupation. For Caroline Abu-Sada, although there can be no doubt – even in legal terms – that an occupation situation exists in the Palestinian Territories, an analysis focused exclusively on the relationship between occupier and occupied is insufficient. It is also important to examine the impact of international aid in the Territories and its role with respect to the responsibilities and policy of the Israeli occupier. The destruction of the UN Club in Gaza is in this respect revealing of the perceptions of some of the Palestinians and their resentment towards the UN. This example should also be compared with the anti-MONUC riots in the DRC, mentioned by Pierre-Antoine Braud in his presentation.
For her part, Annette Becker emphasised the fact that the nature of the problems posed by an occupation was also related to its duration. Whereas the occupations of the two world wars were provisional, lasting from six months to five years, the occupation of the Palestinian Territories is characterised by its extreme length, to the extent that for both Palestinians and Israelis, no end can be seen on the horizon. For Rony Brauman, this fundamental distinction requires the occupation to be considered as an intermediate notion, directing one either "higher", to the general framework of the conflict, or "lower", to the practicalities of each particular occupation, which concretely affect the meaning of the action taken, and how it is taken. The duration of the occupation, which is now multi-generational in Palestine but provisional in the Congo, is what differentiates between the two situations, as does the fact that the Israeli occupation is also a civilian occupation, because apart from the presence of the military, the presence of the settlers to a large extent determines the environment of the Palestinians, the security problems and the choices available to the NGOs. For Xavier Crombé, what brings the cases of the Palestinian Territories and the DRC closer together, while differentiating them from the occupation situations of the First World War, is that in both the first two cases, the international community and some of the aid agencies find themselves having to make choices concerning the construction and definition of a State. These choices are by default in favour of a centralised and stable state in the Congo, in the person of President Kabila, as mentioned by Pierre-Antoine Braud. They are instead changing choices, according to Caroline Abu-Sada, between the Palestinian authority and civil society in the Territories. The question of duration then points, for all “occupied” populations, to their particular history and collective memory, which no doubt influence the way they perceive the occupation and the international presence.
Their relationship to this duration is also what differentiates the humanitarian players from the other parties involved in an occupation. Taking the example of the Palestinian Territories, Rony Brauman feels that the way of solving the dilemma raised by Caroline Abu-Sada between maintaining assistance liable to contribute to sustaining the occupation order and suspension of this assistance, depends on the time-frame within which it takes place. The short-term approach of the NGOs means that they opt for assistance, at the risk of this becoming a part of the strategy of occupation. A more political perspective, placing more emphasis on the longer-term issues, would no doubt require a different solution. This is the position being defended in particular by the Israeli groups opposed to the occupation, who see a collective suspension of aid as the only way of obliging the occupier to face up to the consequences of its policy. The legal perspective supported by the ICRC, also demands that the long-term be considered. As recalled by Catherine Deman, the obligations of the occupying power apply regardless of the duration of the occupation and have implications for the eventual settlement of the conflict. This legal framework also leads the ICRC to renounce all assistance liable to contribute to compromising the institutional, demographic or territorial status quo, such as assistance with resettlement of a population. Finally, from the point of view of the military, as presented by Stuart Gordon, the question of the duration of the occupation depends on the strategies they have to implement. The notion of occupation in fact covers a wide variety of strategies, including both "containment" strategies with no desire for transformation, as well as active transformation strategies perceived to be politically necessary and positive by the western governments.
When questioned by Rony Brauman on the distinction made by the military between humanitarian activities and its legal obligations, Stuart Gordon analysed the legal and political environment in which the armies adopt a stance on these questions. In principle, the activities of an army in a belligerent occupation do not constitute humanitarian acts but are linked to the search for stability and to its legal responsibilities, enshrined in particular in the Fourth Geneva Convention. These activities nonetheless rapidly take on a political dimension owing to the fact that they are used to legitimise the actions of the army in the eyes of domestic public opinion as well as with the civilian populations of the territories in which they are operating. A clear boundary cannot be drawn between assistance activities by the military and the action of humanitarian organisations, unless the latter adhere to a restrictive concept of humanitarianism, in other words palliative action designed exclusively to prevent the loss of human life. Stuart Gordon nonetheless admitted that the legal obligations and tactical requirements of armies means that they will continue to conduct humanitarian actions on certain occasions. An absolute differentiation would therefore be illusory, but the risk of confusion could be considerably reduced.
Sami Makki, a researcher, felt that this confusion was tending to become more the rule than the exception. The chiefs of staff and governments of the western countries today share a strategic goal of accentuating the logic of civil-military integration. It therefore now seems unlikely that there will be any shift towards the paradigm of differentiation proposed by Stuart Gordon, especially as a new type of player, the private company, seems destined to assume an increasingly important role in this integration, with a two-fold function of logistical support for the armed forces and technical support for the governmental cooperation agencies, such as USAID or DFID. Caroline Abu-Sada remarked that this shift was also under way in the Palestinian Territories with the transformation of check-points into terminals, co-managed by the Israeli army and private security companies.
The debate surrounding the problems posed by these new players in international military interventions, as well as the corresponding solutions, has again highlighted different perspectives among the participants to the conference. Faced with the economic and political interest for western governments and armed forces of using these companies – they are more profitable and the death of one of their "employees" weighs less heavily in political terms than the loss of a soldier – the ICRC, as mentioned by Catherine Deman, is attempting to ensure that these new players abide by the rule of law. It is therefore working at three levels. First of all, it reminds the private companies themselves that they are subject to the same legal framework as governments and armed forces in a conflict. The ICRC also underlines that the choice these companies make to develop their own codes of conduct in the name of professional ethics or business morality does not relieve them of their legal obligations. It then carries out work with the countries in which these companies are based, encouraging them to regulate activities in this sector. This approach has proven to be effective in South Africa, where the political will to promote this country’s image in its interventions abroad was being contradicted by the behaviour of mercenaries working for numerous private South African security companies. Finally, the ICRC intervenes with the governments who employ these companies.
Without reference to law, Jean-Hervé Bradol and Rony Brauman nonetheless support a similar logic, which is to see these private companies as just one among many other players in a conflict situation. Jean-Hervé Bradol recalled that generally speaking, from a humanitarian viewpoint, there is no reason to adopt a stance concerning the war or the occupation itself, nor any dilemma involved in dialoguing or negotiating with the occupying forces, as well as any political or military authority in order to successfully carry out a relief operation. More specifically, for Rony Brauman, from the humanitarian viewpoint, there is no difference between armed forces, regardless of their nature, whether regular troops, blue helmets, rebel militias or private companies. He nonetheless warned against the mistake of considering the humanitarian, military and commercial sectors as self-evident homogeneous categories. On the contrary, one must be aware of the diversity of actors and the multifaceted nature of their interests.
Stuart Gordon recognised the validity of the humanitarian standpoint. The situations in which the occupation forces are confronted by various forms of insurrection are a type of warfare, in which the humanitarian agencies do not have to choose sides, while attempting to reach the populations on both sides of a front-line, no matter how blurred. However, from the viewpoint of a regular army, the fear of being mistakenly tied in with the actions of private military companies obeying no rules is a crucial factor in its own safety and the success of its mission. He feels that it is up to the governments to guarantee the professional regulation and control of these private companies, in the interests of their own armed forces. Significantly, and mirroring the presentation by Bernard Juan in the morning, Stuart Gordon argued that the military need to obtain and maintain legitimacy in the eyes of the communities in which they are operating. According to him, the indiscriminate and unlimited use of violence can lead to defeat. The search for this legitimacy is thus a strategic objective which applies both to regular or private armies as well as “guerrillas”, and which involves abiding by the rules of war. However, in the same way as the confusion between the various international, military, commercial and NGO players is a structural phenomenon which needs to be attenuated and organised, but which it would seem difficult to rule out, Stuart Gordon feels that it is just as inconceivable to standardise soldier behaviour at an international level. Among the western armies alone, differences in institutional cultures, not to mention cultural differences in their respective societies regarding the use of firearms by police forces and citizens, are major obstacles to any notion of harmonising military behaviours.
It is with reference to this cultural dimension and more specifically by adopting the notion of a "culture of war" developed by Annette Becker, that Xavier Crombé expressed his scepticism over the ideas of sectorial professionalisation or regulation by law. Whatever the ethics of a profession or the legal framework of its activities, it is how one talks about the enemy and the licence this gives to the public or private armies to exercise violence, which are determining. In line with this general idea, Annette Becker nonetheless stated that one must not ignore the changes that have occurred in the conception of the military since the first half of the 20th century. While the culture of the two world wars was characterised by the confrontation of national armies, the model of the professional army is being increasingly promoted. A professional soldier in a regular army still in theory represents a nation, but the professional aspect of his or her duties tends to take precedence.
TO CONCLUDE …
This one-day conference has not provided any definitive answers nor any clear consensus on the notion of occupation, nor on the specificity of the concrete situations this covers. The only objective specificity lies in the reference to law: specificity of the legal framework and the obligations and legal tools it defines, central aspect of protection issues. But if this reference is mandatory for the ICRC, the same does not go for those humanitarian players, who base their legitimacy on the public recognition of the usefulness of their actions rather than on a legal mandate. They remain ambivalent to the notion of occupation, a problematical political notion with respect to the general category of conflict, but one that is still too vague to allow accurate identification of the issues and practicalities of each given situation. Despite this shared ambivalence, the nature of the debates highlights the fact that what differentiates the various participants, more than the characterisation of the occupation itself, is their respective conception of action, commitment and their limits. For each humanitarian agency, this conception is not however set in stone nor monolithic. Nor is it any more recognised as such by the parties in a conflict who, as Stuart Gordon remarked, can also be looking for legitimacy with the civilian populations and may consequently see NGOs as potential rivals. The study by Xavier Crombé characterised occupation situations as being spaces of disputed legitimacy. The notion of totalisation of the conflict, contributed to the conference by Annette Becker, suggests that no player, including the humanitarian organisations, can for long claim to be external to the conflict when faced with these situations in which positions and political identities are radicalised. The tensions running through the humanitarian organisations themselves likely reflect this contagion.