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The legal framework of humanitarian access in armed conflict

Published online by Cambridge University Press:  15 August 2012

Felix Schwendimann
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Abstract

Obtaining and maintaining humanitarian access to populations in need by humanitarian actors is a challenge. A wide range of constraints on humanitarian access exist, including ongoing hostilities or an otherwise insecure environment, destruction of infrastructure, often onerous bureaucratic requirements, and attempts by parties to armed conflict to block access intentionally. The difficulties that these constraints present to humanitarians are frequently compounded by a lack of familiarity – on the part of states, non-state armed groups, and humanitarian relief organizations – with the legal framework. The main purpose of this article is to lay out the existing international legal framework regulating humanitarian access in situations of armed conflict.

Type
Humanitarian Principles Put at Test
Information
International Review of the Red Cross , Volume 93 , Issue 884: The future of humanitarian action , December 2011 , pp. 993 - 1008
Copyright
Copyright © International Committee of the Red Cross 2012

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References

1 The notion of ‘humanitarian access’ is not defined in international law. Here, humanitarian access is understood as a precondition for effective humanitarian assistance, which requires, to the extent discussed hereafter, the consent of the state or the entity controlling a territory (a non-state armed group). Where the need for such assistance is sustained over a period of time, the term should encompass not only access for goods and services to reach the beneficiaries rapidly but also the maintenance of such access as long as necessary.

2 Keynote address by Dr. Jakob Kellenberger, the President of the ICRC, during the 31st International Conference of the Red Cross and Red Crescent, Geneva, 28 November 2011, p. 2f., available at: http://www.rcrcconference.org/docs_upl/en/Speech_ICRC_President_EN.pdf (last visited 1 May 2012).

3 See, for example, Terry, Fiona, ‘The International Committee of the Red Cross in Afghanistan: reasserting the neutrality of humanitarian action’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 173–188CrossRefGoogle Scholar; Donini, Antonio, ‘Between a rock and a hard place: integration or independence of humanitarian action?’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 141–157CrossRefGoogle Scholar.

4 This article does not purport to offer an exhaustive analysis of the issues raised in its various parts.

5 These two documents were presented during a side event of the 31st International Conference of the Red Cross and Red Crescent on 29 November 2011. They are available at: http://www.eda.admin.ch/eda/en/home/doc/publi/phumig.html (last visited 1 May 2012).

6 Strategy of the Federal Department of Foreign Affairs (FDFA) 2009–2012 on the Protection of Civilians in Armed Conflict, available at: http://www.eda.admin.ch/etc/medialib/downloads/edazen/doc/publi/aussen.Par.0009.File.tmp/EDA%20Schutz%20der%20Zivilbevoelkerung%20e.pdf (last visited 1 May 2012).

7 Ibid., objective 2.2., p. 19.

8 State experts from Argentina, Canada, the Democratic Republic of Congo, Egypt, India, Iraq, Jordan, South Africa, Sri Lanka, Sudan, and Switzerland took part in the meeting, as well as representatives of international and non-governmental organizations. Participants expressed their views in a personal capacity. The discussion was limited to situations of armed conflict and was not focused on any specific context.

9 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared for the 31st International Conference of the Red Cross and Red Crescent, Geneva, 2011, p. 24.

10 See generally McHugh, Gerard and Bessler, Manuel, Humanitarian Negotiations with Armed Groups: A Manual for Practitioners, OCHA, New York, 2006Google Scholar.

11 Charter of the United Nations, Art. 2(1).

12 See UNGA Res. 43/131 (1988), 8 December 1988; UNGA Res. 45/100 (1990), 14 December 1990; UNGA Res. 46/182 (1991), 19 December 1991; UNSC Res. 1706 (2006), 31 August 2006, para. 12; UNSC Res. 1814 (2008), 15 May 2008, para. 17; UNSC Res. 1894 (2009), 11 November 2009, preambular paras. 5 and 6; UNSC Res. 1906 (2009), 23 December 2009, para. 3; UNSC Res. 1910 (2010), 28 January 2010, preambular para. 16; UNSC Res. 1923 (2010), 25 May 2010, para. 2; and UNSC Res. 1970 (2011), 26 February 2011, preambular para. 9.

13 UNGA Res. 46/182 (1991), 19 December 1991, Annex, para. 4.

14 Art. 3(2) common to the four Geneva Conventions; GC IV, Arts. 10 and 59(2); AP I, Art. 70(1); AP II, Art. 18(1) and (2).

15 The starting point must be the human suffering and the offer must be exclusively dedicated to addressing humanitarian needs.

16 The principle of impartiality requires that persons participating in the operation do not take side for reasons of interest, prejudice, or personal sympathy. Pictet, Jean S., The Fundamental Principles of the Red Cross Proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1975: Commentary, Henry Dunant Institute, Geneva, 1979, pp. 48ffGoogle Scholar.

17 The principle of non-discrimination prohibits distinctions made to the detriment of certain persons ‘for the sole reason that they belong to some specific category’ based on criteria such as race, religion, or political opinion. J. S. Pictet, above note 16, p. 38. However, the principle of non-discrimination does not exclude positive actions in favour of particularly vulnerable groups of the population. See Sandoz, Yves et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, para. 2821.

18 UNGA Res. 46/182 (1991), 19 December 1991, Annex, para. 2. The clearest manifestation of the principle of non-intervention is Art. 2(4) of the UN Charter, which prohibits Member States from using force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

19 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para. 242. The Court further noted that humanitarian aid is permitted if it involves ‘the provision of food, clothing, medicine and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death’. Ibid., para. 97.

20 Dinstein, Yoram, ‘The right to humanitarian assistance’, in Naval War College Review, Vol. 53, No. 4, 2000, pp. 77–92Google Scholar.

21 Heike Spieker, ‘The right to give and receive humanitarian assistance’, in Hans-Joachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: A Crosscut Through Legal Issues Pertaining to Humanitarianism, Springer Verlag, Berlin/Heidelberg, 2011, p. 13.

22 Art. 62(1) of Draft Additional Protocol I to the Geneva Conventions (1973): ‘If the civilian population is inadequately supplied, in particular, with foodstuffs, clothing, medical and hospital stores and means of shelter, the Parties to the conflict shall agree to and facilitate those relief actions which are exclusively humanitarian and impartial in character and conducted without any adverse distinction’ (emphasis added). ICRC, ‘Draft Additional Protocols to the Geneva Conventions of 12 August 1949’, Geneva, 1973, p. 78, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/RC-Draft-additional-protocols.pdf (last visited 1 May 2012). See also Art. 33(1) of Draft Additional Protocol II to the Geneva Conventions (1973): ‘If the civilian population is inadequately supplied, in particular, with foodstuffs, clothing, medical and hospital stores and means of shelter, the parties to the conflict shall agree to and facilitate, to the fullest possible extent, those relief actions which are exclusively humanitarian and impartial in character and conducted without any adverse distinction’ (emphasis added). Ibid., p. 165.

23 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (CDDH), Geneva, 1974–1977, available at: http://www.loc.gov/rr/frd/Military_Law/RC-dipl-conference-records.html (last visited 1 May 2012).

24 The Swiss representative said that his delegation would have preferred to delete the words ‘subject to the agreement of the Parties concerned’, which it felt conflicted with the philosophy of the fourth Geneva Convention. The German representative stressed that a party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones. See CDDH, above note 23, Vol. 12, CDDH/II/SR.87, p. 336, paras. 26–27, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/RC-records_Vol-12.pdf (last visited 1 May 2012).

25 This view is confirmed in soft law instruments. The Guiding Principles on Internal Displacement confirm that consent to assistance provided by humanitarian organizations and other appropriate actors ‘shall not be arbitrarily withheld [by national authorities], particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance …’ (Principle 25). In 1998, the UN Secretary-General stated that ‘[h]umanitarian access is, inter alia, a right of refugees, displaced persons and other civilians in conflict situations and should not be seen as a concession to be granted to humanitarian organizations on an arbitrary basis’: UN Secretary-General, Report on Protection for Humanitarian Assistance to Refugees and Others in Conflict Situations, UN Doc. S/1998/883 (1998), para. 15 (emphasis added). Several experts attempted to give examples of the meaning of ‘arbitrary’ in the context of a duty to admit humanitarian assistance without drawing up an exhaustive list. For instance, state sovereignty, internal legal order, national pride and/or interests, political orientation, and interests of the regime in power should not prevail if assistance is really necessary for saving lives. See Yearbook of the Institute of International Law, Session of Bruges, Paris, Vol. 70, Part I, 2003, p. 563; Kolb, Robert, ‘De l'assistance humanitaire: la résolution sur l'assistance humanitaire adoptée par l'Institut de droit international à sa session de Bruges en 2003’, in International Review of the Red Cross, Vol. 86, No. 856, 2004, p. 869Google Scholar.

26 Reasons of imperative military necessity may be considered valid reasons according to Luopajärvi, Katja, ‘Is there an obligation on states to accept international humanitarian assistance to internally displaced persons under international law?’, in International Journal of Refugee Law, Vol. 15, No. 4, 2003, p. 689CrossRefGoogle Scholar.

27 Institute of International Law, Resolution of the Institute of International Law on Humanitarian Assistance, Bruges Session 2003, Art. VIII.1, concludes that ‘Affected States are under the obligation not arbitrarily and unjustifiably to reject a bona fide offer exclusively intended to provide humanitarian assistance or to refuse access to the victims. In particular, they may not reject an offer nor refuse access if such refusal is likely to endanger the fundamental human rights of the victims or would amount to a violation of the ban on starvation of civilians as a method of warfare’.

28 Rebecca Barber argues that there is an obligation in customary international law to consent to humanitarian assistance whether or not the denial of that assistance may lead to starvation. See Barber, Rebecca, ‘Facilitating humanitarian assistance in international humanitarian and human rights law’, in International Review of the Red Cross, Vol. 91, No. 874, 2009, p. 391CrossRefGoogle Scholar.

29 This rule is also of a customary nature: see Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, ICRC and Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar, Rule 53 (hereafter ICRC Study on Customary International Humanitarian Law). For online access to the study, see http://www.icrc.org/customary-ihl/eng/docs/home (last visited 1 May 2012). Starvation is understood as ‘causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies’. Y. Sandoz et al., above note 17, para. 2089.

30 Art. 17 of GC IV only concerns evacuation of certain vulnerable groups (wounded, sick, infirm, aged persons, children, and maternity cases) and the passage of ministers of all religions, medical personnel, and equipment. Art. 23(1) of GC IV limits relief to particular types of goods and the obligation to allow free passage of other supplies, such as food or clothing, is only for the benefit of particularly vulnerable civilians.

31 AP I, Art. 70(3)(c).

32 Y. Sandoz et al., above note 17, paras. 2845–2847.

33 AP I, Art. 70(4) and (5).

34 AP I, Art. 70(3)(a). See also GC IV, Art. 23.

35 AP I, Art. 70(3)(b). See also GC IV, Art. 23. A Protecting Power is a state that represents the interests of the ‘protected’ state and its nationals in the third state.

36 AP I, Art. 71. It is also a rule of customary international humanitarian law that humanitarian relief personnel and objects must be respected and protected. See ICRC Study on Customary International Humanitarian Law, above note 29, Rules 31, 32, and 56.

37 AP I, Art. 71(4).

38 This obligation is also found in customary law. See ICRC Study on Customary International Humanitarian Law, above note 29, Rule 55: ‘The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’.

39 Even though AP II, Art. 18(2) gives the legal government an advantage over the rebel party by requiring the agreement of the ‘High Contracting Party’. See Plattner, Denise, ‘Assistance to the civilian population: the development and present state of international humanitarian law’, in International Review of the Red Cross, Vol. 32, No. 288, pp. 249–263CrossRefGoogle Scholar. See also Dungel, Joakim, ‘A right to humanitarian assistance in internal armed conflicts respecting sovereignty, neutrality and legitimacy: practical proposals to practical problems’, in Journal of Humanitarian Assistance, 2004, available at: http://sites.tufts.edu/jha/archives/838 (last visited 1 May 2012)Google Scholar.

40 See, for example, Common Art. 3(4).

41 According to Art. 1(e) of the Kampala Convention, ‘“Armed Groups” means dissident armed forces or other organized armed groups that are distinct from the armed forces of the state’. This treaty has not yet entered into force as binding international law.

42 Kampala Convention, Art. 7(5)(g). It is important to note that this treaty includes a disclaimer to avoid the treaty being used as proof of legitimacy for the groups addressed: see Art. 7(1).

43 ICRC Study on Customary International Humanitarian Law, above note 29, Rule 55.

44 Ibid., Rules 31, 32, and 56.

45 These obligations may be conceived as a logical consequence of the Occupying Power's general duty to take all feasible measures to restore and ensure adequate conditions of life for the civilian population. Hague Regulations concerning the Laws and Customs of War on Land, 18 October 1907, Art. 43.

46 GC IV, Art. 55(1); AP I, Art. 69(1).

47 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 310Google Scholar.

48 GC IV, Art. 59(1).

49 J. S. Pictet, above note 47, p. 320; Y. Sandoz et al., above note 17, p. 813.

50 GC IV, Art. 59(1).

51 GC IV, Art. 61(2).

52 GC IV, Art. 60. On urgent necessity, see comments above under ‘Control in international armed conflict (other than occupation)’.

53 AP I, Art. 69(2) in connection with AP I, Art. 71. See comments above under ‘Control in international armed conflict (other than occupation)’.

54 GC IV, Art. 59(3). This obligation also binds states imposing a blockade on occupied territories. Relief consignments for the population must be allowed to pass through the blockade. See International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995, para. 103, which is widely recognized to reflect international customary law.

55 GC IV, Art. 59(4).

56 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106. See also Report of the International Commission of Inquiry on Darfur to the UN Secretary-General (2005), para. 143; UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (2004), para. 11.

57 UN Convention on the Rights of the Child, Art. 22(1).

58 African Charter on the Rights and Welfare of the Child, Art. 23(1).

59 Kampala Conventions, Art. 5(6) and (7), Art. 7(5)(b) and (5)(g).

60 The International Covenant on Economic Social and Cultural Rights (ICESCR) does not allow for derogation in times of public emergency, and the general nature of state obligations in the realization of these rights is found in Art. 2(1) of the ICESCR: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to progressively achieving the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’.

61 CESCR, General Comment No. 3, para. 10; General Comment No. 12, paras. 8–13. Similarly, Principle 18(2) of the UN Guiding Principles on Internal Displacement provides that: ‘At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to (a) Essential food and potable water; (b) Basic shelter and housing; (c) Appropriate clothing; and (d) Essential medical services and sanitation.’

62 CESCR, General Comment No. 12 on the right to adequate food, para. 15; CESCR, General Comment No. 15 on the right to water, para. 20; CESCR, General Comment No. 14 on the right to the highest attainable standard of health, para. 33; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, para. 6.

63 ICESCR, Art. 11. See also Pejic, Jelena, ‘The right to food in situations of armed conflict: the legal framework’, in International Review of the Red Cross, Vol. 83, No. 844, 2001, pp. 1097–1109Google Scholar.

64 CESCR, General Comment No. 12, para. 15.

65 ICESCR, Art. 12.

66 CESCR, General Comment No. 14, para. 43.

67 R. Barber, above note 28, p. 395.

68 Institute of International Law, Resolution of the Institute of International Law on Humanitarian Assistance, Bruges Session 2003, Art. III.3; R. Kolb, above note 25, p. 864. See also Kampala Convention, Art. 5(6).

69 CESCR, General Comment No. 3, para. 10; CESCR, General Comment No. 12, para. 17. See also Statement of the CESCR, An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ Under an Optional Protocol to the Covenant, UN Doc. E/C.12/2007/1 (2007), 10 May 2007, para. 4.

70 CESCR, General Comment No. 3, para. 13.

71 The draft articles on state responsibility of the International Law Commission recall the general principle of international law that a breach of a state's international obligation constitutes an international wrongful act, which entails the international responsibility of that state. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Arts 1 and 2.

72 For example, in a resolution on the crisis in Guinea-Bissau, the Security Council called ‘upon all concerned, including the Government and the Self-Proclaimed Military Junta, to respect strictly relevant provisions of international law, including humanitarian and human rights law, and to ensure safe and unimpeded access by international humanitarian organizations to persons in need of assistance as a result of the conflict’. UNSC Res. 1216 (1998), 21 December 1998, para 5. See also UNSC Res. 1478 (2003), 6 May 2003, para. 8; UNSC Res. 1649 (2005), 21 December 2005, preambular paras. 4 and 5; UNSC Res. 1674 (2006), 28 April 2006 para. 22; UNSC Res. 1794 (2007), 21 December 2007, para. 17; UNSC Res. 1936 (2010), 5 August 2010, preambular para 14.

73 AP I, Art. 54; AP II, Art. 14; ICRC Study on Customary International Humanitarian Law, above note 29, Rule 53.

74 Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.138/9, Art. 8(2)(b)(xxv).

75 ICRC Study on Customary International Humanitarian Law, above note 29, Vol. I, Rule 53, pp. 187–188. This could indicate the emergence of a customary criminalization of starvation of the civilian population in non-international armed conflicts. See also J. Dungel, above note 39.

76 The Rome Statute defines it as follows in Art. 8(2)(b)(iii) and (e)(iii): ‘Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’.

77 31st International Conference of the Red Cross and Red Crescent, Resolution 2: ‘4-Year Action Plan for the Implementation of International Humanitarian Law’, 31IC/11/R2, available at: http://www.rcrcconference.org/docs_upl/en/R2_4-Year_Action_Plan_EN.pdf (last visited 1 May 2012).

78 See Rottensteiner, Christa, ‘The denial of humanitarian assistance as a crime under international law’, in International Review of the Red Cross, Vol. 81, No. 835, 1999, pp. 555–582Google Scholar.

79 Rome Statute, Art. 7(1).

80 Rome Statute, Art. 7(1)(b) and Art. 7(2)(b).

81 States may, for example, declare that there is no need for humanitarian assistance in order to limit humanitarian access. Stoffels, Ruth Abril, ‘Legal regulation of humanitarian assistance in armed conflict: achievements and gaps’, in International Review of the Red Cross, Vol. 86, No. 855, 2004, pp. 537–538Google Scholar.

82 See, for example, AP I, Art. 51, on the protection of the civilian population; Thürer, Daniel, International Humanitarian Law: Theory, Practice, Context, Hague Academy of International Law, The Hague, 2011, p. 69CrossRefGoogle Scholar.

83 States have committed themselves to adopt adequate measures at a domestic level, including national legislation, to comply with their international obligations concerning arbitrary obstruction of humanitarian assistance. See 31st International Conference of the Red Cross and Red Crescent, Resolution 2, above note 77.

84 There is also a debate on a potential right to impose assistance without the consent of the parties concerned. Spieker concludes that, to date, a ‘right to access’ has not crystallized in customary international law. See H. Spieker, above note 21, pp. 17–18.

85 The UN Office for the Coordination of Humanitarian Affairs (OCHA) published a study in 2011 that highlights seven categories of good practices for securing and sustaining humanitarian access in high-risk environments. See Egeland, Jan, Harmer, Adele, and Stoddard, Abby, To Stay and Deliver: Good Practice for Humanitarians in Complex Security Environments, OCHA, New York, 2011, pp. 18ffGoogle Scholar. See also Aide Memoire for the consideration of issues pertaining to the protection of civilians in armed conflict, adopted by presidential Statement S/PRST/2010/25 of 22 November 2010. Furthermore, UNITAR'S Operational Satellite Applications Programme (UNOSAT) – a technology-intensive programme delivering imagery analysis and satellite solutions – can help humanitarian actors within and outside the UN to help make a difference in critical areas such as humanitarian relief. See http://www.unitar.org/unosat/ (last visited 1 May 2012).

86 See GC I, Art. 47; GC II, Art. 48; GC III, Art. 127; GC IV, 144; AP I, Art. 83; AP II, Art. 19.

87 Objective one of the 4-Year Action Plan for the Implementation of International Humanitarian Law adopted by the 31st International Conference of the Red Cross and Red Crescent is to enhance access by civilian populations to humanitarian assistance in armed conflict. See Resolution 2, above note 77.