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Enacting the ‘civilian plus’: International humanitarian actors and the conceptualization of distinction

Published online by Cambridge University Press:  29 January 2020

Rebecca Sutton
Rebecca Sutton*
Affiliation:
University of Edinburgh Law School, Old College, South Bridge, EH8 9YL, Edinburgh, UK Email: [email protected]
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Abstract

The civilian-combatant frame persists as the main legal lens through which lawyers organize the relationships of conflict zone actors. As a result, little attention has been paid in international legal scholarship to different gradations of ‘civilianness’ and the ways in which some civilians might compete to distinguish themselves from each other. Drawing attention to international humanitarian actors – particularly those working for NGOs – this article explores the micro-strategies these actors engage in to negotiate their relative status in war. Original qualitative empirical findings from South Sudan illuminate the way in which humanitarians struggle over distinction with individuals working for the UN peacekeeping mission, UNMISS. As is shown, humanitarian actors are doing away with a static civilian-combatant binary in their daily practice. A more fluid logic informs both their self-conceptualization and their interactions with others who share the operational space. Humanitarian actors envision civilianness as a contingent concept, and they operate according to a continuum along which everything is a matter of degree and subtle gradation. As civilianness is detached from the civilian, any given actor might acquire or shed civilian-like, or combatant-like, characteristics at any moment. The distinction practices that humanitarian actors enact can be understood as a bid for legibility, so that they might be rendered intelligible in international law and in the eyes of other actors as a special kind of civilian – the ‘civilian plus’.

Keywords

humanitarian actorsinternational humanitarian lawprinciple of distinctionSouth SudanUN peacekeeping
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 2 , June 2020 , pp. 429 - 449
Copyright
© Foundation of the Leiden Journal of International Law 2020

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Footnotes

*

I am sincerely grateful to the following individuals for commenting on earlier drafts of this work: Devika Hovell, Frédéric Mégret, Gerry Simpson, Mark Drumbl, Martin Clark, Michelle Burgis-Kasthala, Sarah Nouwen. Thank you to my Harvard IGLP writing group, and especially Karen Engle and Christopher Gevers, for sharing insights at our January 2019 Bangkok meeting. Any mistakes that remain are my own. Field research in South Sudan was conducted with funding support from the Pierre Elliott Trudeau Foundation and the European Union’s Programme FP/2007-2013, Grant Agreement N°[340956 - IOW]. Disclaimer: The content of this publication represents only the views of the author and is her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

References

1 The closest relevant literature would be emerging political science scholarship on civilian self-protection. See, e.g., Jose, B. and Medie, P. A., ‘Understanding Why and How Civilians Resort to Self-Protection in Armed Conflict’, (2015) 17 International Studies Review 515Google Scholar.

2 This is partly because the main onus of upholding the civilian–combatant separation is on the parties to the conflict. See, e.g., Art. 51(7) and Art. 58(b) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3 (‘AP I’). See also Art. 4(a)(4) of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (‘GC III’).

3 On the indeterminacy of international law see generally M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005).

4 See A. Orford (ed.), International Law and its Others (2006), and in particular Mégret, F., ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’, in Orford, A. (ed.), International Law and its Others (2006), 265CrossRefGoogle Scholar, at 266.

5 That issue is addressed in Sutton, R., ‘The “Phantom Local” and the Everyday Distinction Practices of Humanitarian Actors in War: A Socio-Legal Perspective’, (2018) 40 New Political Science 640CrossRefGoogle Scholar.

6 Art. 48 of AP I.

7 Dinstein, Y., ‘The Principle of Proportionality’, in Mujezinovic Larsen, K., Cooper, C. and Nystuen, G. (eds.), Searching for a ‘Principle of Humanity’ in International Humanitarian Law (2013), 72Google Scholar, at 74.

8 Art. 50 of AP I. As per A. Alexander, ‘The Genesis of the Civilian’, (2007) 20 LJIL 359, at 359–60.

9 Art. 50 of AP I. Discussed in A. MacDonald, ‘The Challenges to International Humanitarian Law and the Principles of Distinction and Protection from the Increased Participation of Civilians in Hostilities’, (2004) Spotlight on Issues of Contemporary Concern in International Humanitarian Law and International Criminal Law, Working Paper, University of Tehran Round Table.

10 E. Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (2015), 233 (the civilian is given ‘short shrift’ in AP I); Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), 114 (IHL does not ‘tell us who or what the protected persons and objects are’).

11 C. Garbett, The Concept of the Civilian: Legal Recognition, Adjudication and the Trials of International Criminal Justice (2015), 100 (arguing nonetheless that IHL solves the ambiguity of civilian status in AP I; 69).

12 See above, note 2.

13 Pilloud, C., Sandoz, Y. and Swinarski, C. (eds.), ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 609–11 (‘AP Commentary’). Discussed in Kinsella, H., The Image Before the Weapon: A Critical History of the Distinction between Combatant and Civilian (2011), 142Google Scholar.

14 Ibid.

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16 Dinstein, supra note 10, at 142.

17 Kinsella, supra note 13, at 24.

18 Ibid., at 5.

19 Ibid., at 190.

20 Alexander, A., ‘A Short History of International Humanitarian Law’, (2015) 26 EJIL 109CrossRefGoogle Scholar.

21 Alexander, A., ‘International Humanitarian Law: Postcolonialism and the 1977 Geneva Protocol I’, (2016) 17 MJIL 15Google Scholar, at 36 (IHL’s civilian protection rules are replete with ‘cautious disclaimers and imprecise provisions’).

22 Mégret, supra note 4, at 266.

23 Ibid., at 307, 311. See also Lamp, N., ‘Conceptions of War and Paradigms of Compliance: The “New War” Challenge to International Humanitarian Law’, (2011) 16 JCSL 225CrossRefGoogle Scholar.

24 Berman, N., ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’, (2004) 43 CJTL 1Google Scholar, at 54 (discussing the ‘part-time combatant’). See also Boehland, N., The People’s Perspectives: Civilian Involvement in Armed Conflict (2010)Google Scholar.

25 See AP Commentary, supra note 13, at 438.

26 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 1996, para. 257.

27 See Art. 37 of AP I; Art. 37(1) in AP Commentary, supra note 13, at 435; Rule 65 of the ICRC Customary Law Study, available at ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule65.

28 Art. 43(3) of AP I states that, where a combatant cannot distinguish himself due to the nature of hostilities, ‘he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate’. Discussed in Crawford, supra note 10, at 41–2.

29 Discussed in Kinsella, supra note 13, at 5, 143–4.

30 Art. 51(3) of AP I.

31 Ibid.

32 Slim, H., Killing Civilians: Method, Madness, and Morality in War (2010), 210Google Scholar. See also Prosecutor v. Blagoje Simić et al. (Judgement) Case No. IT-95-9-T, T. Ch. II, 17 October 2003, para. 659 (mere possession of a weapon does not create ‘reasonable doubt’ of civilian status). See also MacDonald, supra note 9 (DPH re-orders civilians according to relative innocence); Kinsella, supra note 13, at 144 (DPH undermines the notion of a civilian-combatant opposition).

33 Modirzadeh, N., ‘Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance’, (2014) 5 HNSJ 225Google Scholar, at 301–2.

34 Ibid.

35 Although medical personnel are not addressed explicitly here, it should also be noted that IHL accords special protections and privileges to this group of actors. See Rule 25 of ICRC Customary Law Study, available at ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule25.

36 See Schwendimann, F., ‘The Legal Framework of Humanitarian Access in Armed Conflict’, (2011) 93 IRRC 993CrossRefGoogle Scholar, at 995–6; Barber, R., ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law’, (2009) 91 IRRC 395CrossRefGoogle Scholar; Stoffels, R., ‘Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps’, (2004) 86 IRRC 515CrossRefGoogle Scholar, at 516; Fisher, D., ‘Domestic Regulation of International Humanitarian Relief in Disasters and Armed Conflict: A Comparative Analysis’, (2007) 89 IRRC 345CrossRefGoogle Scholar. See also Zwitter, A. J.et al. (eds.), Humanitarian Action: Global, Regional and Domestic Legal Responses (2014)CrossRefGoogle Scholar (arguing that international law is progressing towards a coherent law of humanitarian assistance).

37 See Durham, H. and Wynn-Pope, P., ‘Protecting the “Helpers”: Humanitarians and Health Care Workers During Times of Armed Conflict’, (2011) 14 YIHL 327CrossRefGoogle Scholar, at 337.

38 See also AP Commentary, supra note 13, at 831. Initially, the draft version of AP I also contained no separate provision for relief personnel.

39 Akande, D. and Gillard, E., Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (2016), 14Google Scholar.

40 Art. 71(2) of AP I. There is no equivalent rule in AP II, though medical relief is clearly protected under Art. 9 of AP I. Protections for humanitarian actors in NIACs ‘as civilians’ can be derived from customary law. See Mackintosh, K., ‘Beyond the Red Cross: The Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law’, (2007) 89 IRRC 113CrossRefGoogle Scholar, at 118. The term ‘respect’ here is interpreted to mean ‘to spare, not to attack’, while protect means ‘to come to someone’s defence, to lend help and support’. See Pictet, J. (ed.), Commentary: IV Geneva Convention, Relative to the Protection of Civilian Persons in Time of War (1958), 146Google Scholar (‘GC IV Commentary’). Discussed in Durham and Wynn-Pope, supra note 37, at 337.

41 See Fast, L., Aid in Danger: The Perils and Promise of Humanitarianism (2014), 197CrossRefGoogle Scholar; Barrat, C., Status of NGOs in International Humanitarian Law (2014), 323CrossRefGoogle Scholar.

42 Durham and Wynn-Pope, supra note 37, at 337.

43 See above, note 8 and earlier argument that the civilian is not formally defined until AP I.

44 See Section 3.2, below. Elsewhere, I depart from the authors’ view that such special treatment is desirable as a normative matter. See Sutton, R., The Humanitarian Actor as ‘Civilian Plus’: The Circulation of the Idea of Distinction in International Law (unpublished PhD Thesis, 2018)CrossRefGoogle Scholar.

45 1998 Rome Statute of the International Criminal Court (last amended 2010), 2187 UNTS 3.

46 Art. 8(2)(e)(ii) of the Rome Statute. Discussed in Schwendimann, supra note 36, at 1005 (noting that a nexus with an armed conflict is required). See also Art. 8(2)(b)(xxiv) which applies in international armed conflicts.

47 Art. 8(2)(e)(iii) of the Rome Statute. See also Art. 8(2)(b)(iii) which applies in international armed conflicts.

See also Art. 4 of the 2002 Statute of the Special Court for Sierra Leone, 2178 UNTS 138, 145; 97 AJIL 295; Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, UN Doc. S/2002/246 (2002), App. II.

48 Art. 8(2)(b)(i) and Art. 8(2)(e)(i) of the Rome Statute, which apply to international armed conflicts and ‘conflicts not of an international character’, respectively.

49 See also Leclerc-Gagné, E., The Construction of the Humanitarian Worker as Inviolate Actor (unpublished PhD thesis, 2014), 137–9Google Scholar (observing that the Art. 8(2)(b)(i) prohibition on attacks against the wider civilian population appears only two clauses prior to Art. 8(2)(b)(iii)).

50 See, e.g., UNSC, ‘Increased Attacks on Aid Workers Due to Lack of Respect for International Humanitarian Law, Deputy Secretary-General Tells Security Council’ (19 August 2014) United Nations Meetings Coverage, UN Doc. SC/11524. Resolutions calling for those engaged in war-fighting to respect and protect humanitarian actors include: UNSC Res 2139, UN Doc. S/RES/2139 (2014); UNSC Res 1894, UN Doc. S/RES/1894 (2009); UNSC Res 1502, UN Doc. S/RES/1502 (2003). See also UNGA Res 52/167, UN Doc. A/RES/52/167 (1997) (condemning any act or failure to act ‘which obstructs or prevents humanitarian personnel from discharging their humanitarian functions’); UNGA Res 53/164, UN Doc. A/RES/53/164 (1998); UNGA Res 54/192, UN Doc. A/RES/54/192 (1999).

51 See above, note 48. The same language can be found in Art. 8(2)(b)(iii), which applies to international armed conflicts.

52 See discussion of DPH above. For an argument that humanitarian actors who are involved in peace enforcement missions lose civilian status see Rogers, A. P. V., Law on the Battlefield (2012), 319Google Scholar. Note that humanitarian actors who operate without state consent do not lose civilian status. See Akande and Gillard, supra note 39, at 51.

53 See Section 4.

54 See Section 2.2.

55 Mégret, supra note 4, at 30–2.

56 Ibid.

57 This is not to say that other kinds of actors cannot legally deliver humanitarian assistance; IHL explicitly empowers states and military actors to do so.

58 Debuf, E., ‘Tools to Do the Job: The ICRC’s Legal Status, Privileges and Immunities’, (2016) 97 IRRC 319CrossRefGoogle Scholar, at 324; Dormann, K. and Maresca, L., ‘The ICRC and its Contribution to the Development of IHL in Specialized Instruments’, (2004–5) 5 CJIL 217Google Scholar, at 217; Demeyere, B., ‘Turning the Stranger into a Partner: The Role and Responsibilities of Civil Society in International Humanitarian Law Formulation and Application’, (2016)Google Scholar Harvard Program on Humanitarian Policy and Conflict Research Thematic Brief, 8–9 (special privileges and immunities granted to ICRC and related personnel by states on a case-by-case basis). See also Art. 4 of AP I (ICRC serves as a substitute for the Protecting Power, where appropriate); UN Doc. A/RES/45/6 (1990) (confirming ICRC observer status at the UNGA).

59 Greenwood, C., ‘Historical Development and Legal Basis’, in Fleck, D. (ed.), Handbook on International Humanitarian Law (2008), 1Google Scholar, at 22.

60 Debuf, supra note 58, at 320–1.

61 See Common Art. 3 of GC I-IV (referring to an impartial humanitarian body ‘such as’ the ICRC); Art. 63 of GC IV (the occupying power may not require any changes in the personnel or structure of relief societies such as the ICRC that could prejudice relief activities); Art. 9 of GC I-III; Art. 10 of GC IV (with the consent of the parties to the conflict, the ICRC ‘or any other impartial humanitarian organization’ may undertake humanitarian activities to protect and provide relief to civilian persons). Discussed in Mackintosh, supra note 40, at 115–16. Art. 63(c) of GC IV opens out a bit further, according a right of humanitarian initiative to ‘special organizations of a non-military character’ that work to improve the living conditions of the civilian population.

62 Durham and Wynn-Pope, supra note 37, at 336 (the GCs of 1949 focused on the recipients of assistance).

63 Note that other actors such as medical professionals also receive special privileges and treatment under IHL. See Brooks, J., ‘Protecting Humanitarian Action: Key Challenges and Lessons from the Field’, Harvard Humanitarian Initiative and ATHA, 2016, 10Google Scholar, available at reliefweb.int/sites/reliefweb.int/files/resources/atha_key_challenges_in_the_protection_of_humanitarian_action.pdf.

See Rule 25 of ICRC Customary Law Study, supra note 35.

64 Drawing again on the terminology in Orford, supra note 4, and Mégret, supra note 4. There is not scope in this article to address the situation of local humanitarian actors or national staff of humanitarian agencies, but this would be an important dimension to explore. One could argue that local humanitarian actors are the true ‘other’ humanitarian actors, highlighting the way in which ideals of race, class and civilianization shape the humanitarian fantasy.

65 The ICRC remains one of the largest operational international humanitarian organizations today, but most humanitarian assistance is delivered by non-Red Cross actors. See Kellenberger, J., ‘The Role of the International Committee of the Red Cross’, in Clapham, A. and Gaeta, P. (eds.), Oxford Handbook of International Law in Armed Conflict (2014), 20Google Scholar. In 2007, approximately 58% of humanitarian assistance was delivered by NGOs. See P. Walker and K. Pepper, Follow the Money: A Review and Analysis of the State of Humanitarian Funding (2007). In 2015 and 2016, funding to NGOs as a proportion of total international humanitarian assistance (from private, governmental and EU donors) was 38% and 35%, respectively. This reflects only direct funds and does not account for all of the resources sub-granted to NGOs by other aid recipients, such as UN agencies. See Development Initiatives, Global Humanitarian Assistance Report 2018, available at devinit.org/wp-content/uploads/2018/06/GHA-Report-2018.pdf, Ch. 4.

66 The focus here is on the Red Cross emblem, specifically, rather than the sun, crescent, lion or crystal. On the special treatment of the emblem in IHL see AP Commentary, supra note 13, at 832; Demeyere, supra note 58, at 11. See also B. Rolle and E. Lafontaine, ‘The Emblem that Cried Wolf: ICRC Study on the Use of Emblems’, (2009) 91 IRRC 759.

67 Van Brabant, K., ‘Operational Security Management in Violent Environments’, (2000) Humanitarian Policy Network Good Practice ReviewGoogle Scholar, 336; Demeyere, supra note 58, at 11.

68 Mackintosh, supra note 40.

69 For an argument that NGOs that follow Red Cross-style principles may claim IHL’s protections, see Kuijt, E., ‘A Humanitarian Crisis: Reframing the Legal Framework on Humanitarian AssistanceGoogle Scholar’, in Zwitter et al. (eds.), supra note 36, 54, at 66–7.

70 Davies, K., Continuity, Change and Contest: Meanings of ‘Humanitarian’ from the ‘Religion of Humanity’ to the Kosovo War (2012)Google Scholar.

71 On the lack of crystalized legal personality in international law for NGOs see Kuijt, supra note 69, at 66–7.

72 Barrat argues that MSF likely fits into the following IHL categories: medical personnel, substitute protecting power, impartial humanitarian body, relief society, social organization and organization assisting protected persons. See Barrat, supra note 41, at 340, Table 2.

73 Weir, E., ‘Conflict and Compromise: UN Integrated Missions and the Humanitarian Imperative’, (2006)Google Scholar Kofi Annan International Peacekeeping Training Centre Monograph, 44; Mackintosh, supra note 40, at 114; Bourloyannis-Vrailas, C., ‘The Convention on the Safety of United Nations and Associated Personnel’, (1995) 44 ICLQ 560, at 564–6CrossRefGoogle Scholar.

74 Weir, supra note 73, at 44.

75 On the treatment of the UN flag and logo in the Rome Statute, see Art. 8(2)(b)(vii) of UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998.

76 Blank, L. R., ‘The Limits of Inviolability: The Parameters for Protection of United Nations Facilities During Armed Conflict’, (2017) 93 ILS 45Google Scholar, at 62.

77 1994 Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363 (‘1994 Convention’); 1946 Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15 (‘1946 Convention’). Discussed in Bourloyannis-Vrailas, supra note 73; Blank, supra note 76, at 50. See also T. Ferraro, ‘The Applicability of International Humanitarian Law to Multinational Forces’, (2013) 95 IRRC 561.

78 A parallel can be found in the ICRC Commentary with respect to the issue of granting special privileges or protections to certain segments of the civilian population under GC IV of 1949. The Commentary asserts that special protections are ‘not instead of, but in addition to the protection given generally’. See 1958 Commentary to GC IV re: Art. 16(2) of GC IV.

79 This broader claim is substantiated in the wider study. See Sutton, supra note 44.

80 See Section 4.2, below.

81 Nouwen, S., Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013)CrossRefGoogle Scholar.

82 Eslava, L., Local Space, Global Life: The Everyday Operation of International Law and Development (2015)CrossRefGoogle Scholar. On the socio-legal study of law in everyday life see Sarat, A. and Kearns, T. R., ‘Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life’, in Sarat, A. and Kearns, T. R. (eds.), Law in Everyday Life (1993), 21CrossRefGoogle Scholar.

83 The article is part of a larger study, which relies on extensive qualitative empirical material gathered through participant-observation and interviews conducted in South Sudan and at civil-military trainings held in Sweden, Germany and Italy. See note 93, below.

84 Sarat and Kearns, supra note 82, at 29, 32.

85 In the parlance of the legal consciousness literature, this might also be conceptualized as humanitarian actors ‘playing with the law’. See Ewick, P. and Silbey, S., The Common Place of Law: Stories from Everyday Life (1998)CrossRefGoogle Scholar. On legal consciousness and the humanitarian actor subject position (in the context of duty of care litigation) see Bergtora Sandvik, K., ‘Humanitarians in Court: How Duty of Care Travelled from Human Resources to Legal Liability’, (2018) 50 Journal of Legal Pluralism and Unofficial Law 358CrossRefGoogle Scholar.

86 Boer, L. M., ‘The Greater Part of Juriconsults: On Consensus Claims and their Footnotes in Legal Scholarship’, (2016) 29 LJIL 1021CrossRefGoogle Scholar, at 1041–2.

87 A. Orford, ‘In Praise of Description’, (2012) 25 LJIL 609.

88 Boer, supra note 86, at 1041–2.

89 Koskenniemi, M., ‘Occupied Zone: A Zone of “Reasonableness”?’, (2008) 41 ILR 13CrossRefGoogle Scholar, at 40 (on the limitations of bright-line rules in the Israeli-Palestinian conflict); Alexander, A., The Idea of the Civilian in International Law (unpublished PhD thesis, 2013), 14Google Scholar.

90 Meron, T., War Crimes Law Comes of Age (1998), 159CrossRefGoogle Scholar; Kinsella, supra note 13, at 189.

91 See Section 2.

92 Drawing on Erving Goffman’s concept of the encounter, which is defined as the ‘natural unit of social organization in which focused interaction occurs’. See Goffman, E., Encounters; Two Studies in the Sociology of Interaction (2013), 8Google Scholar.

93 I conducted fieldwork in August and September 2015 in Bor, Jonglei state; Bentiu, Unity state; and Juba, Central Equatoria state. Fifty-five interviews were conducted with key informants, and 58 individuals were consulted through focus group discussions. The present discussion is primarily based on 48 interviews conducted with individuals working for UNMISS, humanitarian NGOs, and other international agencies during the 2015 visit. The analysis is also informed indirectly by earlier visits to South Sudan in 2010, 2011 and 2014 as well as field experience running a humanitarian NGO mission in Darfur, Sudan from 2009–2011.

94 Chapter VII entitles UN forces to engage in robust use of force, and to use ‘all necessary means’ to self-protect, protect the civilian population and humanitarian actors. See UNSC Res 1996, UN Doc. S/RES/1996 (2011). UNMISS replaced UNMIS, which had been installed in 2005 under UN Doc. S/RES/1590 (2005).

95 UN Doc. S/RES/2155 (2014). At the time field research was conducted for this article, UNMISS was composed of 12,523 uniformed personnel, 796 international civilian personnel, 1,204 local civilian personnel and 409 UN Volunteers. ‘UNMISS Facts and Figures’, UNMISS website, June 2015. In this article, UN Volunteers, international and local civilian personnel are loosely grouped together as ‘UNMISS civilian staff’.

96 Arensen, M., If We Leave We Are Killed: Lessons Learned from South Sudan Protection of Civilians Sites (2016), 12Google Scholar; Lilly, D., ‘Protection of Civilians Sites: A New Type of Displacement Settlement? Google Scholar’, Humanitarian Exchange Magazine No.62, September 2014, available at odihpn.org/magazine/protection-of-civilians-sites-a-new-type-of-displacement-settlement/.

97 It is generally agreed that South Sudan has been a non-international armed conflict since December 2013. See Geneva Academy, Rule of Law in Armed Conflicts (RULAC) project, ‘Non-International Armed Conflict in South Sudan’, available at www.rulac.org/browse/conflicts/non-international-armed-conflict-in-south-sudan#collapse4accord. See also Blanchard, L., ‘Conflict in South Sudan and the Challenges Ahead’ (2016)Google Scholar Congressional Research Service Report.

98 As directly observed during fieldwork in 2015 and reported in key informant interviews.

99 Ibid. A comparison could be drawn with the UN-protected safe haven of Srebrenica in Bosnia. In that case, perpetrators argued that Bosnian Muslims living inside were using the site to launch attacks against them, and that UN forces were failing to prevent them from doing so. See Prosecutor v. Radislav Krstić (Judgement), Case No. IT-98-33-A, Appeals Chamber, 19 April 2004, para 24.

100 Arensen, supra note 96, at 15.

101 See Briggs, C., Protection of Civilians Sites: Lessons from South Sudan for Future Operations (2017), 64–6Google Scholar.

102 See Arensen, supra note 96, at 58.

103 See McCrone, F., Justice Displaced: Field Notes on Criminality and Insecurity in South Sudan’s UN Protection of Civilian Sites (2016)Google Scholar. This state of affairs was confirmed in field interviews conducted in 2015.

104 See, e.g., Lischer, S. K., Dangerous Sanctuaries: Refugee Camps, Civil War, and the Dilemmas of Humanitarian Aid (2005)Google Scholar.

105 The perceptions of these three sets of local players are discussed in Sutton, supra note 5.

106 On the safety of local humanitarian actors and the particular security risks they face see, e.g., Andersson, R. and Weigand, F., ‘Intervention at Risk: The Vicious Cycle of Distance and Danger in Mali and Afghanistan’, (2015) 9 JIS 519CrossRefGoogle Scholar, at 17.

107 For an overview of humanitarian-peacekeeper relationships until the late 1990s see Minear, L., ‘Humanitarian Action and Peacekeeping Operations’, 26 February 1997, Journal of Humanitarian AssistanceGoogle Scholar, available at sites.tufts.edu/jha/archives/110.

108 See, e.g., Young, K., ‘UNHCR and ICRC in the Former Yugoslavia: Bosnia-Herzegovina’, (2001) 83 IRRC 781Google Scholar.

109 The challenges that integrated peacekeeping poses for humanitarian action are discussed in Weir, supra note 73. On UN Integration policies generally see Metcalfe, V. et al., UN Integration and Humanitarian Space: An Independent Study Commissioned by the UN Integration Steering Group (2011)Google Scholar.

110 On impartiality in peacekeeping see Paddon Rhoads, E., Taking Sides in Peacekeeping: Impartiality and the Future of the United Nations (2016)CrossRefGoogle Scholar.

111 On the traditional humanitarian principles see Pictet, J., The Fundamental Principles of the Red Cross, Commentary (1979)CrossRefGoogle Scholar. Not all humanitarian actors claim to be neutral in contemporary conflicts. See Slim, H., Humanitarian Ethics: A Guide to the Morality of Aid in War and Disaster (2015), 70Google Scholar.

112 On humanitarian space see Wagner, J. G., ‘An IHL/ICRC Perspective on “Humanitarian Space”’, (2005)Google ScholarHumanitarian Exchange Magazine No. 32; Thurer, D., ‘Dunant’s Pyramid: Thoughts on the “Humanitarian Space”’, (2007) 89 IRRC 47CrossRefGoogle Scholar; Beauchamp, S., ‘Humanitarian Space in Search of a New Home’, in Perrin, B. (ed.), Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations, and the Law (2012), 199Google Scholar.

113 For a critique of the exclusivity of humanitarian space see Collinson, S. and Elhawary, S., Humanitarian Space: A Review of Trends and Issues (2012)Google Scholar.

114 A contemporary scenario that tests these limits is the mandate of the Force Intervention Brigade affiliated with the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo. See UN Doc. S/RES/2098 (2013); Sheeran, S. and Case, S., ‘The Intervention Brigade: Legal Issues for the UN in the Democratic Republic of the Congo’ (2014)Google Scholar. See also Grenfell, K., ‘Perspective on the Applicability and Application of International Humanitarian Law: the UN Context’, (2013) 95 IRRCCrossRefGoogle Scholar No. 891/2, at 645.

115 See International Group of Experts, Leuven Manual on the International Law Applicable to Peace Operations (2017), 97–9.

116 UNMISS signed a Status of Forces Agreement with the GoSS in 2011 which states that UNMISS military personnel will comply with IHL rules. See Section Four of the Status of Forces Agreement between the United Nations and the Government of the Republic of South Sudan Concerning the United Nations Mission in South Sudan, available at unmiss.unmissions.org/sites/default/files/unmiss_sofa_-_english_version_0.pdf. In 2013, South Sudan ratified GC I-IV of 1949 and AP I-III. See also UN Doc. S/RES/2155 (2014), supra note 95.

117 Leuven Manual, supra note 115, at 97–9.

118 Ibid.

119 Another reason the ICRC might attract this designation is its special status under IHL, as discussed in Section 3.

120 Pibor is a town in Boma state, South Sudan, where MSF has maintained an active presence.

121 See above in this section.

122 In my field research I have found that peacekeepers often self-conceptualize as combatants.

123 Sheeran and Case, supra note 114; Lilly, D., ‘The United Nations as a Party to Armed Conflict: The Intervention Brigade of MONUSCO in the Democratic Republic of Congo (DRC)’, (2016) 20 Journal of International Peacekeeping 313CrossRefGoogle Scholar. The combatant status of peacekeepers is contemplated in UN documents. See, e.g., Section 1.1 of UN Secretary-General’s Bulletin, ‘Observance by United Nations Forces of International Humanitarian Law’, UN Doc. ST/SGB/1999/13 (1999).

124 Many military and peacekeeping actors I interviewed and observed for the larger study also referred to MSF and ICRC more approvingly than other humanitarian actors.

125 See also Dorussen, H. and de Vooght, M., Putting Civilians First: NGO Perceptions and Expectations of UN Peacebuilding (2018), 4Google Scholar (finding that NGOs tend to view the work of UN Police and UN Civil Affairs as supporting governmental and transitional authorities).

126 Humanitarian NGOs have expressed concern about the adverse impact on local perceptions when black UN actors accompany blue UN actors, or when black UN actors use equipment that is branded blue UN. Ibid., at 3.

127 Speaking of confusion also presumes that violence against humanitarian actors is the result of a mistake. On intentional violence against humanitarian actors see Hammond, L., ‘The Power of Holding Humanitarianism Hostage and the Myth of the Protective Principles’, in Barnett, M. and Weiss, T. (eds.), Humanitarianism in Question: Politics, Power, and Ethics (2008), 172Google Scholar.

128 Although it would be possible to extend this continuum all the way to the furthest combatant side, to limit the scope of the discussion I will focus on the civilian side.

129 See Levitt, P. and Merry, S., ‘Vernacularization on the Ground: Local Uses of Global Women’s Rights in Peru, China, India and the United States’, (2009) 9 Global Networks 441CrossRefGoogle Scholar (defining vernacularization as a ‘process of appropriation and local adoption of globally generated ideas and strategies’).

130 See also the discussion in Section 4.2 about perceptions of the general civilian population in South Sudan.

131 See Sections 3.1 and 4.3.

132 It was argued in Section 2 of this article that this unified category is, in fact, non-existent.

133 Beerli, M. J., ‘Saving the Saviors: Security Practices and Professional Struggles in the Humanitarian Space’, (2018) 12 IPS 70CrossRefGoogle Scholar; Andersson and Weigand, supra note 106.

134 Pugh, M., ‘The Role of Armed Protection in Humanitarian Action’, in Humanitarian Action: Perception and Security, European Commission Seminar proceedings (European Commission Humanitarian Office and International Committee of the Red Cross, Lisbon 27–28 March 2007)Google Scholar.

135 In raising the possibility that humanitarian actors might be viewed as ordinary or lesser civilians, I do not mean to suggest that they would be mistaken for the general civilian population. On the whole, expatriate humanitarian actors will materially appear very different from local civilian populations; much has been written about the white SUVs, offices, and lodgings of the former. See especially Smirl, L., Spaces of Aid: Post Disaster Relief and Reconstruction (2015)Google Scholar; Duffield, M., ‘Risk-Management and the Fortified Aid Compound: Everyday Life in Post-Interventionary Society’, (2010) 4 JIS 453CrossRefGoogle Scholar, at 471.

136 I wish to thank Mark Drumbl for this alternative language.

137 Nouwen, S., ‘As You Set Out for Ithaka: Practical, Epistemological, Ethical and Existential Questions about Socio-legal Empirical Research in Conflict’, (2014) 27 LJIL 227Google Scholar, at 233.

138 Ibid.

139 Alexander, supra note 89, at 36.

140 Ibid., at 35–6.