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Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps

Published online by Cambridge University Press:  27 April 2010

Ruth Abril Stoffels
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International Review of the Red Cross , Volume 86 , Issue 855 , September 2004 , pp. 515 - 546
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Copyright © International Committee of the Red Cross 2004

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References

1 See Pictet, Jean, Développement et principes du droit international humanitaire, Pedone, Paris, 1983, p. 78Google Scholar. Pictet determines that there are three common principles to humanitarian law and human rights law: inviolability, non-discrimination and security. The first one, according to Pictet, means that “l'individu a droit au respect de sa vie, de son intégrité physique et morale et des attributs inséparables de la personnalité.”

2 “The Court observes that the protection of the International Covenant on Civil and Political Rights does not cease in times of war (…) the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict.” ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, para. 25.

3 See González, Manuel Pérez, “Las relaciones entre el derecho internacional de los derechos humanos y el derecho internacional humanitario”, in Cursos Euromediterráneos Bancaja de Derecho Internacional, Centro Internacional Bancaja para la Paz y el Desarrollo (CIBPD), Valencia, 1997, p. 361.Google Scholar

4 In addition to express references in conventions, this obligation flows from the positive, as well as the negative, obligations imposed on States in international conventions. Article 2 of the 1966 International Covenant on Civil and Political Rights makes express reference to such obligations; the comments of the Human Rights Committee on the right to life, laid down in Article 6 of the Covenant, clearly indicate that such an obligation exists in relation to the right to life (Human Rights Committee, General Comment No. 6, 30 July 1982). The obligation is also established in the following instruments, among others: Preamble to the 1948 Universal Declaration of Human Rights; 1989 Convention on the Rights of the Child (Article 6); 1953 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14); 1981 African Charter on Human and People's Rights (Article 1); 1969 American Convention on Human Rights – “Pact of San José” (Articles 1 and 2); 1966 International Covenant on Economic, Social and Cultural Rights (Article 2).

5 Depriving civilians belonging to a particular group of supplies essential for survival may be considered an act of genocide or a crime against humanity (extermination).

6 See Resolution XXVIII of the 20th International Conference of the Red Cross and Red Crescent (Vienna, 1965).

7 Articles 55 and 81.

8 Articles 38, 39, and particularly Article 23.

9 These two categories of population (the own nationals of the State concerned and the nationals of neutral States) are only protected, as relief is concerned, by Article 23 of the Fourth Geneva Convention, which referes to the free passage of aid destined for the civilian population in the territory of a third State.

10 Part IV, Section II of this Protocol (entitled “Relief in favour of the civilian population”) contains obligations regarding the entry, passage and distribution of aid for the civilian population. The civilian population includes all civilians, independent of their nationality or position in the conflict (see Article 50 Additional Protocol I).

11 See Pictet, Jean (ed.), Commentary: IV Geneva Convention relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1958, p. 47Google Scholar; Condorelli, Luigi, “Intervention humanitaire et/ou assistance humanitaire? Quelques certitudes et beaucoup d'interrogations”, in Swinarski, C. (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of lean Pictet, International Committee of the Red Cross/Martinus Nijhoff Publishers, Geneva/The Hague, 1984, p. 1007.Google Scholar

12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977 (hereinafter “Additional Protocol M”).

13 Legality of the Threat or Use of Nuclear Weapons, op. cit. (note 3), para. 22.

14 See Articles 23, 30, 54, 59, 110, 111 and 142 of the Fourth Geneva Convention.

15 See Articles 70 and 71 of Additional Protocol I.

16 The issue has clearly been addressed in the same way in these texts in relation to all types of conflict. The following conclusions can be drawn from an analysis of relevant resolutions adopted by the United Nations Security Council: (i) no distinction is made between international conflicts and internal conflicts; (ii) the severity of the tone of the language used to ask parties to authorize humanitarian assistance varies (“requested”, “invited”, “called on”, “enjoined”, “strongly enjoined”, “urged”). While it is true that more peremptory terms are usually employed for particularly serious humanitarian situations and particularly condemnable conduct, even then the language used is often very mild; (iii) these appeals are addressed to both the State and non-State party; (iv) reference is usually made to the duties of the parties to the conflict and the rights of humanitarian organizations and personnel, and not to the right of victims to humanitarian assistance; (v) the appeals usually urge the parties to: refrain from obstructing the passage and distribution of humanitarian aid, guarantee humanitarian organizations access to victims, cooperate in the work of humanitarian organizations and personnel, guarantee the safety of humanitarian personnel and relief consignments; (vi) in addition, they condemn yiolent acts committed by the parties to conflict directly against humanitarian personnel, premises, means of transport and relief supplies, and sometimes even require those who committed such acts of violence to be punished. These conclusions apply equally to the other international organizations mentioned above. See Abril Stoffels, op. cit. (note *), pp. 145 ff., 262 ff. and 417 ff.

17 Ibid., pp. 272 and 425 ff.

18 Article 54 of Additional Protocol I, which is considered part of customary law, as demonstrated by the fact that under Article 8.2.D (xxv) of the Rome Statute such act is recognized as an international crime and can be prosecuted and punished by the International Criminal Court.

19 Articles 17 and 23 of the Fourth Geneva Convention.

20 An examination of the measures adopted by the United Nations Security Council reveals that a distinction is made between different types of relief supplies: those directly excluded from measures adopted by the Council (medical supplies); those subject to a notification procedure to inform the organization responsible for implementing the measures adopted (foodstuffs); and those subject to a non-objection procedure (other supplies to meet humanitarian needs). See Abril Stoffels, op. cit. (note *), pp. 188 ff.

21 See Pictet, op. cit. (note 1).

22 ICJ, Barcelona Traction Case, Merits, Judgment, 5 February 1970, ICJ Reports 1970, para. 33; ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, para. 218; ICJ, Legality of the Threat or Use of Nuclear Weapons, op. cit. (note 3), para. 79.

23 The right to humanitarian assistance is here analysed as a right derived essentially from the right to life and as an individual right. It could also be analysed from the point of view of collective or group rights.

24 The following countries are more than five years behind in submitting reports: Somalia, Central African Republic, Democratic Republic of the Congo, Rwanda, Côte d'lvoire, and Afghanistan. Human Rights Committee, Annual Report of the Human Rights Committee, 30 October 2002, UN Doc. A/57/40, Vol. I, pp. 19–20.

25 See, however, Article 39 of the Rules of Procedure of the European Court for Human Rights, which has been used only in cases of the death penalty and torture (linked in general to extradition or expulsion procedures).

26 See Abril Stoffels, op. cit. (note *), pp. 268 ff. and 423 ff.

27 See, among others, Ridruejo, Jose A. Pastor, “La protectión de tos derechos humanos en las Naciones Unidas”, in Cursos de Derecho International Vitoria-Gastéiz, Universidad del País Vasco, Vitoria, 1988, pp. 39 ff.Google Scholar

28 United Nations Commission on Human Rights, The right to food, 17 April 2000, UN Doc. E/CN.4/RES/2000/10.

29 See (idem) 7 February 2001, UN Doc. E/CN.4/2001/53, and especially paras. 72–106 of Report by the Special Rapporteur on the right to food, Mr Jean Ziegler, submitted in accordance with Resolution 2001/25, 10 January 2002, UN Doc. E/CN.4/2002/58.

30 For example, the Suez Canal crisis, the Goa conflict and the conflicts between France and Tunisia and between India and Pakistan.

31 See, among others, Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, International Committee of the Red Cross, Geneva, pp. 985–1061Google Scholar; Dominicé, Christian: “La aplicación de la⋅ leyes humanitarias” in Las dimensiones internacionales de los derechos humanos, Vol. II, Serbal/UNESCO, Barcelona, 1984, pp. 586–608Google Scholar; Veuthey, Michel, “De la guerre d'Octobre 1973 au conflit du Golfe 1991: les appels du CICR pour la protection de la population civile”, in Delissen, Astrid J.M. and Tanja, Gerard J. (eds.), Humanitarian Law of Armed Conflicts, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, pp. 527–543Google Scholar; Veuthey, Michel, “Implementation and enforcement of humanitarian law and human rights in non-international armed conflicts: The role of the ICRC”, The American University Law Review, Vol. 33, No. 1, Autumn 1983.Google Scholar

32 The statutory basis for offering humanitarian assistance is established in the provisions of Article 5 of the Statutes of the International Red Cross and Red Crescent Movement, among others. Article 4.2 of the Statutes of the International Committee of the Red Cross also makes specific reference to this capacity: “The ICRC may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary”.

33 Impartial commission of experts set up to examine and analyse information on violations of international humanitarian law in Rwanda by United Nations Security Council Resolution 935 of 1 July 1994, UN Doc. S/RES/935 (1994); Commission of experts set up to investigate violations of international humanitarian law in the former Yugoslavia by United Nations Security Council Resolution 780 of 6 October 1992, UN Doc. S/RES/780 (1992); Commission set up to monitor human rights abuse in East Timor since 1 January 1999, which completed its work on 14 December of the same year (UN Doc. E/CN.4/RES/1999/S-4). On this type of mechanism, see Tomuschat, Christian, “Current issues of responsibility under international law”, in Cursos Euromediterráneos Bancaja de Derecho International, CIBPD, Valencia, Vol. IV, 2000.Google Scholar

34 Articles 6.c, 7.1.b, 8.2.b (iii), 8.2.b (xxv) and 8.2.e (iii) respectively.

35 Although this link was noted as far back as Resolution 307 (1971) on the India-Pakistan conflict, Resolution 361 (1974) on the Cyprus conflict, and Resolutions 512, 513, 518 and 520 (all adopted in 1982) on the Lebanon conflict, it was the humanitarian crisis in Iraqi Kurdistan and subsequent crises in Somalia and Yugoslavia that led to it being conclusively and definitively established.

36 See Abril Stoffels, op. cit. (note *), pp. 219 ff.

37 A recent example of such an appeal is to be found in Resolution 1497 of 1 August 2003, which “calls on all Liberian parties and Member States (…) to ensure the safe and unimpeded access of international humanitarian personnel to populations in need in Liberia”.

38 Articles 10 and 59 of the Fourth Geneva Convention; Article 70 of Additional Protocol I; Article 18.1 Additional Protocol; Resolutions 43/131 and 45/100 of the United Nations General Assembly; and many of the above-mentioned United Nations Security Council resolutions.

39 The wording of this article, which provides that an “impartial humanitarian body (…) may offer its services to the Parties to the conflict”, seems to suggest that the authorization of either one of the parties, the State or the insurgents, confers the protection of IHL on humanitarian aid.

40 “If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival (…) relief actions for the civilian population (…) shall be undertaken subject to the consent of the High Contracting Party concerned.”

41 1974–1977 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Official Records, CDDH/II/SR.88, Vol. 12, pp. 366–367; CDDH/II/GT/108, CDDH/II/440, Vol. XIII, p. 441; CDDH/II/440/Add.i, Vol. XIII, p. 445; CDDH/II/SR.94, Vol. XII, pp. 425 ff.; CDDH/II/SR.95, Vol. XII, pp. 435 ff.; CDDH/II/444; Vol. XIII, p. 424.

42 This was common practice in conflicts such as those in Ethiopia, Sudan, Iraq and the former Yugoslavia.

43 See Gaetano Arangio-Ruiz, “Fourth Report on State responsibility”, UN Doc. A/CN.4/444/Add. 1, 1992, pp. 18 ff.

44 Sandoz, Yves, “‘Droit’ or ‘devoir d'ingérence’ and the right to assistance: The issues involved”, International Review of the Red Cross, Vol. 32, No. 111, November-December 1992, p. 234CrossRefGoogle Scholar (the argument revolves around the imposition of aid on the grounds of humanitarian necessity).

45 See Military and Paramilitary Activities in and against Nicaragua, op. cit. (note 23), para. 242. See also Resolution VIII of the 20th International Conference of the Red Cross and Red Crescent, Vienna, 1965.

46 Military and Paramilitary Activities in and against Nicaragua, op. cit. (note 23), para. 242.

47 See Article 27 of the Fourth Geneva Convention, Article 25 of the Second Geneva Convention and Article 8 of Additional Protocol I.

48 See The causes of conflict and the promotion of durable peace and sustainable development in Africa. Report of the Secretary-General, 16 April 1998, UN Doc. A/52/871.

49 Annual Report of the Secretary-General on the Work of the Organization, 31 August 1999, UN Doc. A/54/1, paras. 257–258.