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Published online by Cambridge University Press: 12 November 2021
The use of armed escorts to humanitarian convoys delivering humanitarian assistance potentially increases the targeting of these convoys, yet so far this use has not been examined from the perspective of international humanitarian law (IHL). This article attempts to determine whether the resort to armed escorts is in line with the principle of passive precautions under IHL, how the principle of proportionality could apply in cases of attack against the escort, and whether the convoy turns into a military objective when escorted. Finally, the article tackles the limitations of such a framework in order to define the situations it covers.
The views expressed in this article are the author's own and do not necessarily reflect those of the organization with which she is affiliated.
1 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 69(1) applicable in occupied territories and Art. 70(1) applicable in non-occupied territories, which refers to Art. 69(1) for an enumeration of the objects it covers. See also Marco Sassòli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare, 1st ed., Edward Elgar, Cheltenham, 2019, p. 575.
2 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 55, 60; AP I, Art. 69.
3 GC IV, Arts 59, 61; AP I, Art. 69.
4 GC IV, Art. 23; AP I, Art. 70.
5 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 18; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 55, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1 (all internet references were accessed in November 2021).
6 M. Sassòli, above note 1, pp. 579, 580.
7 Ibid., p. 578. Also note that such consent would not confer any the legal status to the armed group: see, for example, Art. 3(4) common to the four Geneva Conventions.
8 GC IV, Arts 23, 59, 61; AP I, Art. 70(2); ICRC Customary Law Study, above note 5, Rule 55.
9 Abby Stoddard, Paul Harvey, Monica Czwarno and Meriah-Jo Breckenridge, Aid Worker Security Report 2020: Contending with Threats to Humanitarian Health Workers in the Age of Epidemics, Humanitarian Outcomes, London, August 2020, pp. 1–21, available at: www.humanitarianoutcomes.org/sites/default/files/publications/awsr2020_0_0.pdf.
10 For example, this is the case with MINUSCA in the Central African Republic and MONUSCO in the Democratic Republic of the Congo. See, respectively, UN Office for coordination of Humanitarian Action (OCHA), Country Specific Guidelines for Civil-Military Coordination between Humanitarian Actors and MINUSCA in the Central African Republic, 2017, p. 7, available at: https://ccorca.org/wp-content/uploads/2018/10/country-specific-guidelines-civil-military-coordination.pdf; “La premiere aide alimentaire arrive dans l'Est du pays”, France 24, 14 November 2011, available at: www.france24.com/fr/20081114-premiere-aide-alimentaire-arrive-lest-pays-rd-congo.
11 For example, “the ICRC resorted to an armed escort by clan representatives for its food convoys in circumstances where State consent could not be obtained”: see Tully, Stephen, “Soldiers Bearing Gifts”, Australian Defence Force Journal, No. 125, 1997, p. 26Google Scholar. Tully further differentiates between unilateral State-initiated convoys, UN convoys, convoys of the Office of the UN High Commissioner for Refugees, and convoys composed of local personnel hired by aid agencies: ibid., p.26.
12 Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on AP I/AP II), p. 834, para. 2888.
13 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 22(2).
14 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field, 2nd ed., Geneva, 2016 (ICRC Commentary on GC I), para. 1871.
15 Ibid., para. 1874.
16 IASC, Non-Binding Guidelines on the Use of Armed Escorts for Humanitarian Convoys, 2013, available at: www.unocha.org/sites/unocha/files/Armed%20Escort%20Guidelines%20-%20Final.pdf. See, by contrast, for civil–military cooperation other than armed escorts to humanitarian convoys, OCHA, Guidelines on the Use of Military and Civil Defence Assets to Support United Nations Humanitarian Activities in Complex Emergencies, 2003 (revised in 2006), available at: www.unocha.org/publication/guidelines-use-military-and-civil-defence-assets-support-united-nations-humanitarian.
17 IASC, above note 16, p. 6.
18 Ibid., p. 6.
19 Ibid., p. 6.
20 ICRC, Report on the Use of Armed Protection for Humanitarian Assistance, Geneva, 1995, available at: www.icrc.org/en/doc/resources/documents/report/57jneg.htm.
21 ICRC, “The ICRC and the Use of Armed Guards”, News Release 97/04, Geneva, 2009, available at: www.icrc.org/en/doc/resources/documents/news-release/2009-and-earlier/57jncq.htm.
22 ICRC, above note 20.
23 Ibid.
24 Ibid.
25 OCHA, United Nations Civil-Military Coordination: Field Handbook, 2018, p. 162, available at: https://tinyurl.com/9ut8ctmv.
26 Mackintosh, Kate, “Beyond the Red Cross: The Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law”, International Review of the Red Cross, Vol. 89, No. 864, 2007, p. 122CrossRefGoogle Scholar.
27 GC I, Art. 22(2).
28 AP I, Art. 58(c).
29 Jensen, Eric T., “Precautions against the Effects of Attacks in Urban Areas”, International Review of the Red Cross, Vol. 98, No. 1, 2016, p. 161CrossRefGoogle Scholar.
30 Ibid., p. 161.
31 ICRC Commentary on AP I, above note 12, p. 600, para. 1875. The Commentary gives an additional definition of military operations as “the movements, manoeuvres and actions of any sort, carried out by the armed forces with a view to combat” (emphasis added) in the context of Article 3 of AP I: see Ibid., p. 66, para. 152. It can be argued that if used in this sense, the practice of armed escorts would not fall under the qualification of military operations because such escorts are not per se carried out with a view to combat. However, the definition given under the Commentary on Article 48 of AP I should be preferred when it comes to the protection of the civilian population as expressed under the Commentary itself: “this term is used in several articles in this Section … and it may be useful to refer to the commentary thereon”. See ibid, p. 600, para. 1875.
32 E. T. Jensen, above note 29, pp. 61, 156.
33 “Danger”, Cambridge Dictionary, available at: https://dictionary.cambridge.org/dictionary/english/danger.
34 Marco Sassòli, “The Obligation to Take Feasible Passive Precautions and the Prohibition of the Use of Human Shields: Can Military Considerations, including Force Protection, Justify Not to Respect Them?”, Collegium, No. 46, 2016, p. 78.
35 ICRC Commentary on AP I, above note 12, p. 692, para. 2239.
36 E. T. Jensen, above note 29, p. 162; see also William H. Boothby, The Law of Targeting, Oxford University Press, Oxford, 2012, p. 132.
37 ICRC Customary Law Study, above note 5, Rule 22.
38 Ibid., Rules 22–24.
39 ICTY, Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Judgment (Trial Chamber), 14 January 2000, para. 524.
40 The customary nature of the obligation to avoid locating military objectives in densely populated areas can, however, be doubted: see M. Sassòli, above note 34, p. 78.
41 ICRC Customary Law Study, above note 5, Rule 22.
42 AP I, Art. 57.
43 This suggestion reflects the approach of Corn, Geoffrey and Schoettler, James A., “Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures”, Military Law Review, Vol. 223, No. 4, 2015Google Scholar.
44 W. H. Boothby, above note 36, p. 131.
45 Ibid., p. 132.
46 This interpretation is accepted by the Netherlands, the UK and “at least eight other States”: see E. T. Jensen, above note 36, p. 165. The United States is also included: see M. Sassòli, above note 34, p. 83.
47 G. Corn and J. A. Schoettler, above note 43, p. 830.
48 US Department of Defense, Law of War Manual, Office of General Counsel, 2015, p. 190, cited in E. T. Jensen, above note 36, p. 156.
49 W. H. Boothby, above note 36, p. 131.
50 G. Corn and J. A. Schoettler, above note 43, p. 830.
51 OCHA, above note 25, p. 62.
52 IASC, above note 16, p. 6.
53 It is interesting to note that this reasoning based on passive precautions applied to armed escorts to humanitarian convoys is also coherent with the way in which escorts must be used in other contexts, such as medical units. In the context of medical units, armed escorts shall be resorted to in exceptional circumstances. Moreover, the resort to armed escorts is subsidiary in that it only occurs when the lightly armed medical personnel are not sufficiently numerous to ensure the protection of the medical unit or where the medical personnel are not armed. Further, the use of force must be made for defensive purposes. Lastly, the escort may not use heavy weapons. The Commentary on GC I also specifies that the armed escort must have been assigned to guard the medical unit to the exclusion of any military objective surrounding it. See ICRC Commentary on GC I, above note 14, para. 1874.
54 Article 54(2) of AP I prohibits the destruction of such goods “whatever the motive”. Although Article 14 of AP II is drafted differently, a similar reasoning applies. See ICRC Commentary on AP II, above note 12, para. 4807; ICRC Customary Law Study, above note 5, Rule 54.
55 AP I, Art. 54; AP II, Art. 14; ICRC Customary Law Study, above note 5, Rule 54.
56 Compare with incidental starvation of the civilian population stemming from sieges pursuing a lawful military purpose: see ICRC Customary Law Study, above note 5, Rule 54. See also Emanuela-Chiara Gillard, “Seventy Years of the Geneva Conventions”, Chatham House, 24 March 2020, available at: www.chathamhouse.org/2020/03/seventy-years-geneva-conventions/sieges-starvation-civilians-method-warfare-and-other; Gloria Gaggioli, “Are Sieges Prohibited under Contemporary IHL?”, EJIL: Talk!, 30 January 2019, available at: www.ejiltalk.org/joint-blog-series-on-international-law-and-armed-conflict-are-sieges-prohibited-under-contemporary-ihl/.
57 See GC IV, Art. 23 on the free passage of specific consignments; GC IV, Art. 59 on the obligation to permit free passage of supplies on their way to occupied territories and guarantee their protection; AP I, Art. 70(2) on the obligation to facilitate unimpeded passage of relief consignments; and ICRC Customary Law Study, above note 5, Rule 55 as the latter's customary equivalent.
58 Strictly speaking, the Commentary on Article 70(2) of AP I envisages the addressees of the obligation as the signatories of AP I who control a territory through which the relief supplies are passing (ICRC Commentary on AP I, above note 12, paras 2824, 2828). It is silent on the impediment of humanitarian aid by a State Party in another State Party's territory through means other than direct attacks on the supplies – these attacks are already covered by other rules of IHL. In the case of an attack on an armed escort to a humanitarian convoy, it may be that a party to the conflict is impeding the passage of the convoy in another State Party's territory without directly attacking the consignments. If it is considered that the attacking party is not an addressee of the obligation to facilitate the unimpeded passage of the convoy because it does not control the territory where the relief action is taking place, this would lead to absurd results. In addition, the letter of Article 70(2) refers to “Parties to the conflict” and “Each High Contracting Party”. This wording, combined with an interpretation of the provision in good faith, would lead to the inclusion of this attacking party as an addressee of this provision. This interpretation in good faith also applies to Rule 55 of the ICRC Customary Law Study, above note 5, which refers to the facilitation of the unimpeded passage of relief consignments by the parties controlling the areas through which the supplies are passing. Article 59 of GC IV applicable in situations of occupation is interpreted more broadly in the Commentaries and refers to “states concerned” without specifying whether they are those through which relief supplies are passing. See Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 321.
59 See ICRC Commentary on AP I, paras 2805, 2829.
60 ICRC Customary Law Study, above note 5, Commentary on Rule 55.
61 AP I, Art. 49.
62 Ibid., Art. 51.
63 Schmitt, Michael N., “Wired Warfare: Computer Network Attack and the Jus in Bello”, International Law Studies, Vol. 76, 2002, p. 204Google Scholar.
64 The author retains the definition of a military advantage as annihilating or weakening enemy forces. See ICRC Commentary on AP I, p. 685, para. 2218.
65 See International Institute for Strategic Studies, “Humanitarian Aid as a Weapon of War”, Armed Conflict Survey, Vol. 5, 2019, pp. 14–20.
66 Laurent Gisel, The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law, ICRC, Geneva, 2018, p. 18.
67 Ibid., p. 61.
68 Ibid., p. 61.
69 ICRC, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects, Report of the Expert Meeting, Chavannes-de-Bogis, 24–25 February 2015.
70 Fenton, Hensey A. III, “Proportionality and Its Applicability in the Realm of Cyber-Attacks”, Duke Journal of Comparative and International Law, Vol. 29, No. 2, 2019Google Scholar.
71 Lindsey Cameron and Marco Sassòli, “The Protection of Civilian Objects: Current State of the Law and Issues De Lege Ferenda”, in Natalino Ronzitti and Gabriella Venturini (eds), The Law of Air Warfare: Contemporary Issues, Eleven International, The Hague, 2006, p. 67.
72 L. Gisel, above note 66, p. 44.
73 Robinson, Isabel and Nohle, Ellen, “Proportionality and Precautions in Attack: The Reverberating Effects of Using Explosive Weapons in Populated Areas”, International review of the Red Cross, Vol. 98, No. 901, 2016, p. 114CrossRefGoogle Scholar.
74 Henderson, Ian and Reece, Kate, “Proportionality under International Humanitarian Law: The ‘Reasonable Military Commander’ Standard and Reverberating Effects”, Vanderbilt Journal of Transnational Law, Vol. 51, No. 3, 2018, p. 852Google Scholar.
75 Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I, Martinus Nijhoff, Leiden and Boston, MA, 2009, p. 210.
76 L. Gisel, above note 66, p. 44.
77 Ibid., p. 44.
78 I. Henderson, above note 75, p. 128.
79 Emanuela-Chiara Gillard, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Chatham House, 2018, p. 18, available at: www.chathamhouse.org/sites/default/files/publications/research/2018-12-10-proportionality-conduct-hostilities-incidental-harm-gillard-final.pdf.
80 Ibid., p. 18.
81 L. Gisel, above note 66, p. 47.
82 Most provisions on humanitarian assistance reflect this reality: see, for example, AP I, Art. 70(1); AP II, Art. 18; GC IV, Art. 59.
83 The standard of foreseeability in considering this first causal step remains open. Even proponents of the obligation to account for reverberating effects in the assessment of proportionality disagree on this meaning. In particular, the different interpretations of foreseeability vary from likelihood, probability and reasonable causality to a subjective criteria consisting of an open inquiry or even a criteria encompassing effects which would not have happened but for the attack. See L. Gisel, above note 66, pp. 118–119. This author interprets the notion of “expected” in Article 51(5)(b) of AP I as “likely” or “probable” because this is the ordinary meaning of the concept. As such, it is not necessary to be able to trace back the injury to the civilian population to the specific incidental halting of the convoy in question.
84 As previously examined, this deprivation is not necessarily covered by the prohibition on starvation of the civilian population, if the food supplies are not yet rendered useless in the sense of the prohibition for instance.
85 L. Gisel, above note 66, p. 44. Here, a difficulty that remains is that in an attack of opportunity, the attacker of the escort to the convoy may not know the nature of the specific consignment being transported and may thus be unable to correctly assess the reverberating effects on the civilian population. This is a shared difficulty with the traditional debate surrounding reverberating effects of attacks on the civilian population.
86 Ibid., p. 49.
87 Ibid., p. 49.
88 Ibid., p. 51.
89 In addition, the obligation that the passage of the convoy remains unimpeded is an obligation of means that the other party may be considered as having fulfilled after the attack in light of security concerns, for example. See ICRC Commentary on AP I, above note 12, para. 2829. As such, the attacking party may not even have certainty that the convoy would be halted only temporarily.
90 I. Robinson and E. Nohle, above note 73, p. 116.
91 Michael Talhami and Mark Zeitoun, “The Impact of Explosive Weapons on Urban Services: Direct and Reverberating Effects across Space and Time”, International Review of the Red Cross, Vol. 98, No. 901, 2016.
92 L. Gisel, above note 66, p. 61.
93 Ibid., p. 61. See also I. Henderson, above note 75, p. 192.
94 ICTY, Kupreskic, above note 39, para. 524.
95 For example, in Syria. See UN Security Council, UN Summary by the Secretary-General of the Report of the United Nations Headquarters Board of Inquiry into the Incident involving a Relief Operation to Urum Al-Kubra, Syrian Arab Republic on 19 September 2016, UN Doc. S/2016/1093, 21 December 2016, para. 19.
96 For example, in Nigeria. See OCHA, above note 25, p. 163.
97 ICRC Customary Law Study, above note 5, Rule 32.
98 GC I, Arts 19, 21.
99 Ibid., Arts 21, 22; AP I, Art. 13; ICRC Customary Law Study, above note 5, Rule 25.
100 ICRC Customary Law Study, above note 5, Commentary on Rule 32.
101 Flavia Lattanzi, “Humanitarian Assistance”, in Andrew Clapham, Marco Sassòli and Paola Gaeta (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 240.
102 ICRC Customary Law Study, above note 5, Rule 32.
103 OCHA, above note 25, p. 6.
104 Nils Melzer and Gloria Gaggioli, “Conceptual Distinction and Overlaps between Law Enforcement and the Conduct of Hostilities”, in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations, 2nd ed., Oxford University Press, Oxford, 2015, p. 75.
105 Ibid., p. 75 (emphasis added).
106 Ibid., p. 72.
107 Gloria Gaggioli, “The Use of Force in Armed Conflicts: Conduct of Hostilities, Law Enforcement, and Self-Defense”, in Winston S. Williams and Christopher M. Ford (eds), Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, 1st ed., Oxford University Press, New York, 2018, p. 103.
108 AP I, Art. 49.
109 Or at least affects its military capacity – see N. Melzer and G. Gaggioli, above note 104, p. 74.
110 Gloria Gaggioli, The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms, Report of the Expert Meeting, ICRC, Geneva, 2013.
111 N. Melzer and G. Gaggioli, above note 104, p. 73.
112 Report of the High-level Independent Panel on Peace Operations on Uniting our Strength for Peace: Politics, Partnerships and People, UN Doc. A/70/95–S/2015/446, 17 June 2015, para. 90.
113 Ibid., para. 128.
114 Ibid., para. 128.
115 Secretary-General's Bulletin, “Observance by United Nations Forces of International Humanitarian Law”, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 1.
116 Ibid., Section 5.4.
117 Mathew Happold, “Comment: Obligations of States Contributing to UN Peacekeeping Missions under Common Article 1 of the Geneva Conventions”, in Heike Krieger (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge University Press, Cambridge, 2015, p. 369.
118 Which may be the case even in non-forcible peacekeeping mandates: see S. Tully, above note 11, p. 26.
119 ICRC Commentary on GC I, above note 14, para. 140. See also Eve Massingham and Annabel McConnachie, “Common Article 1: An Introduction”, in Ensuring Respect for International Humanitarian Law, 1st ed., Routledge, London, 2020, pp. 1–11.
120 M. Sassòli, above note 1, p. 471. On criteria for the support-based theory, see Tristan Ferraro, “The Applicability and Application of International Humanitarian Law to Multinational Forces”, International Review of the Red Cross, Vol. 95, No. 891–892, 2015, p. 584.
121 M. Sassòli, above note 1, p. 551.
122 Lindsey Cameron and Vincent Chetail, Privatizing War: Private Military and Security Companies under Public International Law, Cambridge University Press, Cambridge, 2013, p. 466.
123 Ibid., p. 467.
124 Ibid., p. 262.
125 Ibid., p. 264.
126 M. Sassòli, above note 1, p. 552.
127 L. Cameron and V. Chetail, above note 122, pp. 467, 432. On the status of PMSCs, see Ibid., p. 386. It is also worth noting that the presence of a PMSC in the vicinity of the convoy does not per se turn the convoy into a military objective.
128 M. Sassòli, above note 1, p. 552.
129 Even when paradigms other than the conduct of hostilities prevail, uncertainties arise as to whether a right to self-defence would by granted to private individuals, and whether such a right would also be granted when private individuals are defending property, such as a humanitarian convoy in our case. See L. Cameron and V. Chetail, above note 122, pp. 467, 463; N. Melzer and G. Gaggioli, above note 104, p. 86.
130 Elvina Pothelet, “Life in Rebel Territory: Is Everything War?”, Armed Groups and International Law, 20 May 2020, available at: https://armedgroups-internationallaw.org/2020/05/20/life-in-rebel-territory-is-everything-war/.
131 See G. Gaggioli, above note 107, p. 88.
132 See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, p. 53, available at: www.icrc.org/sites/default/files/document/file_list/challenges-report_ihl-and-non-state-armed-groups.pdf.
133 E. Pothelet, above note 130.
134 See GC IV, Art. 59; AP I, Art. 70; ICRC Customary Law Study, above note 5, Rule 55.
135 F. Lattanzi, above note 101, p. 241. On the possibility of making technical arrangements, see GC IV, Art.59; AP I, Art. 70; ICRC Customary Law Study, above note 5, Rule 55.
136 This is the case in the Democratic Republic of the Congo, where the rare humanitarian organizations that have access to the desired areas must be unescorted, pursuant to the requirements of non-State armed group commanders. See OCHA, above note 25, p. 163.
137 M. Sassòli, above note 1, p. 405 (emphasis added).