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Humanitarian action: A delicate balancing act

Published online by Cambridge University Press:  13 January 2010

Michael A. Meyer
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Extract

Increasingly a number of non-governmental organisations (NGOs) appear to be demanding the right to provide humanitarian assistance and at the same time the right to denounce any violations of human rights. Whereas these are fine and understandable aspirations, they do not coincide with accepted principles of relief law and practice. This short article will explore certain aspects of this subject, primarily in relation to the treaty law applicable to circumstances of armed conflict and in occupied territories (International Humanitarian Law).

Type
Protection and Assistance
Information
International Review of the Red Cross (1961 - 1997) , Volume 27 , Issue 260: Protection and Assistance , October 1987 , pp. 485 - 500
Copyright
Copyright © International Committee of the Red Cross 1987

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References

1 This issue was raised at the conference on Law and Humanitarian Ethics held in Paris in January 1987, reported in the March–April 1987 issue of the International Review of the Red Cross, No. 257, at pp. 226–229 Google Scholar. It was also discussed in the review of Jean-Christophe Rufin's book Le piège (The trap), by Jean-Luc Blondel, also in the March–April 1987 issue of the Review, at pp. 233–235.Google Scholar

2 Violations of human rights or IHL may be most likely to occur in such situations. Also IHL, more than any other body of law, may be said to contain most of the formal provisions accepted by the majority of States pertaining to humanitarian assistance of the kind offered by NGOs.

3 One might observe that in any event, there is no entirely satisfactory definition of an NGO. For the purposes of this study, a non-governmental organisation is an organisation not established by a government or by an inter-governmental agreement. It is usually private in nature, composed of members who may be individuals or organisations, has specific objects, and may be national or international. See generally Rechenberg, H.H-K., “Non-Governmental Organizations” in Encyclopedia of Public International Law, Instalment 9 (Amsterdam: North Holland 1986), pp. 276 et seq.Google Scholar

4 El Baradei, M. et al. , Model Rules for Disaster Relief Operations, Policy and Efficacy Studies No. 8, United Nations Institute for Training and Research (Unitar), 1982 Google Scholar. Also see the Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, Twenty-first International Conference of the Red Cross, Istanbul, Resolution XXVI, 09 1969 Google Scholar. This Declaration reflects many of the accepted principles or relief law and practice.

5 Art. 18, First Geneva Convention.

6 Art. 21, Second Geneva Convention.

7 Art. 17, Protocol I. Protocol I also extends a certain general protection to all those engaged in medical activities, even if they are not assigned to medical purposes by a Party to the conflict (Art. 16). Yet unlike authorised medical personnel, civilian or military, medical personnel without an official authorisation from a Party to a conflict will not be respected and protected in all circumstances, and the Parties to a conflict are not required to help and facilitate their humanitarian functions (e.g. see Art. 15, Protocol I).

8 Pictet, J. S. (ed.), Commentary [to the First Geneva of Convention of 1949], ICRC, Geneva 1952, pp. 190–191.Google Scholar

9 E.g. Art. 39, 42, 44, First Geneva Convention.

10 E.g. Art. 126, Third Geneva Convention; Art. 143, Fourth Geneva Convention. But even these rights may be restricted “for reasons of imperative military necessity” albeit temporarily, and the appointment of ICRC delegates must be submitted for the approval of the authority concerned.

11 Art. 26, First Geneva Convention. These voluntary aid societies may also belong to a neutral country; in this case, they will have the previous consent of their own Govenment and the authorization of the Party to the conflict concerned (Art. 27, First Geneva Convention). Reference to “national voluntary aid societies” is made in Protocol I (Art. 8 (c) (ii)).

12 Art. 24, Second Geneva Convention. These officially recognised relief societies may also belong to a neutral country; in this case, they will require the previous consent of their own governments and the authorization of the Party to the conflict concerned (Art. 25, Second Geneva Convention).

13 Art. 125, Third Geneva Convention.

14 Art. 142, Fourth Geneva Convention.

15 Art. 63, Fourth Geneva Convention.

16 For example, strict conditions are placed on those voluntary aid society personnel who have the same protected status under IHL as the permanent medical personnel of the armed forces. These conditions apply both to the voluntary aid society—due recognition and authorisation; notification; control; and to the personnel—same medical duties; exclusive engagement; subject to military law. Although municipal (national) law will ultimately govern the conditions under which voluntary aid society personnel lend their assistance to the medical services of the armed forces and their status, unless other provision is made, such personnel will retain their civilian status. Voluntary aid society personnel engaged in other duties will also have civilian status but without the privileges of those employed on the same duties as the permanent medical personnel of the armed forces, such as the right to use the protective emblem of the red cross or red crescent (First Geneva Convention, Art. 40) and upon capture, the right to the status of retained personnel rather than of prisoner of war (First Geneva Convention, Art. 28; also see Third Geneva Convention, Art. 33).

17 For example, the property of voluntary aid societies used to help the sick and wounded of the armed forces is in a more advantageous position than the property belonging to the military medical services: it cannot be regarded as war booty or confiscated, and it is subject to only limited rights of requisition and seizure (First Geneva Convention, Art. 34). This illustrates that these societies retain their own personality and status as voluntary, private institutions, although they are closely connected with a Party to a conflict.

18 E.g. with respect to occupied territory, Art. 59, Fourth Geneva Convention.

19 See generally, Sandoz, Y., “Le droit d'initiative du Comité international de la Croix-Rouge”, German Yearbook of International Law (1979), pp. 352–373 Google Scholar. See, also, Statutes of the International Red Cross and Red Crescent Movement 1986 Google Scholar, Arts. 5 (2) (d) and 5 (3); ICRC Statutes, 1973, as revised, Arts. 4 (1) (d) and 4 (2).

20 ICRC, “Action by the International Committee of the Red Cross in the Event of Breaches of International Humanitarian Law”, International Review of the Red Cross, No. 221, 03–04 1981, pp. 76–83.Google Scholar

21 See, for example, Sandoz, Y., “Appel du C.I.C.R. dans le cadre du conflit entre l'Irak et l'Iran”, Annuaire Français de Droit International (1983), pp. 161–173.Google Scholar

22 Common Article 1 to the Geneva Conventions 1949 and Article 1 (1) of Protocol I 1977.

23 Even after agreeing to the sending of relief supplies, the Sri Lankan Government insisted that the aid was not needed, accepting it “purely in the interests of good-neighbourly relations”. The Guardian, London, 06 26, 1987, p. 10.Google Scholar

24 Pictet, J. S. (ed.), op. cit., p. 108.Google Scholar

25 Ibid., p. 109.

26 Ibid.

27 Bothe, M. et al. , New Rules for Victims of Armed Conflicts, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 435 Google Scholar [commentary on Art. 70 of Additional Protocol I of 1977].

28 See commentary on Art. 12 of the First Geneva Convention, Pictet, J. S. (ed.), op. cit., pp. 137–138.Google Scholar

29 ICRC, Kampuchea, Geneva (10 1981), p. 13 and also see p. 6.Google Scholar

30 E.g. see Art. 70, Protocol I.

31 For example, starvation of civilians as a method of warfare or combat prohibited (Art. 54, Protocol I and Art. 14, Protocol II respectively). Also, for other parts of a provision to make sense, discretion cannot be unfettered (e.g. see Art. 70 (1), Protocol I), and a treaty must be interpreted in good faith (Vienna Convention on the Law of Treaties, 1969, Art. 31 (1)). Referring to Art. 18 of Protocol II on relief societies and actions in internal armed conflicts, the United States State Department reported: “This important provision… reflects compromise with those delegations [at the Diplomatic Conference] which were unwilling to accept an unconditional obligation to permit and facilitate relief shipments. For its part, the United States would expect that the requirement of consent by the party concerned would not be implemented in an arbitrary manner, and that essential relief shipments would only be restricted or denied for the most compelling and legitimate reasons” (Message from the President Transmitting Protocol II to the Senate, January 29, 1987, 26 I.L.M., 1987, 561 at 567).

32 See also Art. 5, Fourth Geneva Convention, which denies the rights of the Convention to, inter alia, an individual protected person “definitely suspected of or engaged in activities hostile to the security of the State”. Nevertheless such persons are to be treated humanely and retain a right to a fair and regular trial.

33 See, e.g., Arts. 30 and 143, Fourth Geneva Convention, which authorize the ICRC to visit protected persons.

34 Pictet, J. S. (ed.), Commentary [to the Fourth Geneva Convention 1949], ICRC, Geneva, 1958, p. 218.Google Scholar

35 Ibid.

36 See, e.g., Art. 26, First Geneva Convention, on voluntary aid societies and Art. 63, Fourth Geneva Convention, on relief societies in occupied territory.

37 See, e.g., Art. 61, Fourth Geneva Convention on the distribution of relief consignments.

38 In fact this may have been quite a courageous act on the part of the Indian Red Cross, an illustration perhaps of the Red Cross Principle of Independence, The Guardian, 06 3, 1987, p. 6.Google Scholar

39 See Art. 81 (4), Protocol I.

40 The ICRC status agreements are an example.

41 As an illustration, the League of Red Cross and Red Crescent Societies usually concludes agreements with its field personnel, setting out the terms of their mission. If sent by a National Red Cross or Red Crescent Society, these personnel may also have signed a somewhat similar agreement with them.

42 The Guardian, 07 4, 1987, p. 6.Google Scholar

43 But even taking of records must be done in ways unlikely to endanger the aid operation. In the relief action in Sri Lanka, the English language press in Colombo, which is said to be influenced by the government, has accused Indian Red Cross personnel of compiling dossiers on alleged disappearances and excesses by government forces. These charges have been denied by the Indian High Commission, The Guardian, 07 2, 1987, p. 10.Google Scholar

44 There may be developing customary law to the effect that the red cross or red crescent emblems will have a protective value if displayed by authorised persons or units in circumstances of internal conflict, at least in those situations covered by Common Article 3 to the Geneva Conventions even if these situations are below the threshold of application of Protocol II. More controversially, but not without foundation, this postulated customary rule might also be said to apply to internal disturbances and tensions to which international human rights instruments are applicable but to which Common Article 3 does not apply.

45 See footnote 20 supra.

46 See footnote 4 supra.