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

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Legal regulation of humanitarian assistance in Contradictory images of humanitarian assistance in armed conflict paint a confusing picture. There are now a great many public and privatehumanitarian organizations operating all over the world. The work that theydo is seen to help save lives and alleviate the suffering of those not takingpart in an armed conflict, who are deprived of the basic necessities of life as aresult of the hostilities. The organizations responsible for enforcing inter-national humanitarian law (IHL) and international human rights law(IHRL) and, in certain circumstances, those responsible for dealing withthreats to international peace and security are also seen to take seriousaction when parties to a conflict obstruct efforts to provide humanitarianassistance.
However, it is also evident that a relatively large proportion of relief supplies ends up in the hands of combatants, that parties to a conflict some-times reject the offer of such aid for victims of the hostilities for no apparentreason and that humanitarian aid is sometimes even used by the belligerentsas a weapon of war. In some cases, the international community attempts tocompensate for the lack of protection against serious violations of internatio-nal law by sending relief supplies for the victims and thereby often prolongtheir suffering.
The issues raised by this situation warrant an examination of the law regulating humanitarian assistance in armed conflict, the progress made todate and the gaps in regulation that need to be filled.
* The author is Professor of Public International Law at the Universidad Cardenal Herrera-CEU, Valencia, Spain; and researcher at CEDIH, the Spanish Red Cross Centre for the study of international humanitarian law. The ideas put forward in this paper are taken from the book by the author: Ruth Abril Stoffels, La asisten- cia humanitaria en los conflictos armados: configuración jurídica, principios rectores y mecanismos de garantía, Tirant lo Blanch, Valencia, 2001, which was awarded the 2003 Paul Reuter prize.
04_article Stoffels 18.10.2004 8:58 Page 516 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps This article is structured around three main areas: (i) humanitarian assistance as a right of the civilian population that is guaranteed under bothIHL and IHRL; (ii) implementation and enforcement mechanisms to ensurecompliance with obligations stemming from this right; and (iii) the regula-tion of the implementation of humanitarian assistance: offer and provisionof aid, with or without the consent of the parties to a conflict, and the condi-tions in which humanitarian assistance is afforded protection under interna-tional law.
The right to humanitarian assistance
This section is based on a joint analysis of IHL and IHRL, which is First, the right of the civilian population to humanitarian assistance can be derived from the principle of inviolability1, which is at the basis ofboth IHL and IHRL. Second, there are gaps in the regulation of humani-tarian assistance set forth in conventional IHL that can only be filled byIHRL (for example, the duty of a State to ensure that its own population isadequately supplied in emergency situations and in non-international armedconflict, the duty to cooperate with humanitarian organizations and the dutyto protect convoys, cannot be deduced literally from IHL). Third, as obser-ved by the International Court of Justice (ICJ), limitations on the right tolife2 and, specifically, on the right to humanitarian assistance in conflictsituations are determined by IHL. Fourth, the development of IHRL willreinforce and advance the establishment of the majority of norms concer-ning humanitarian assistance in armed conflict as part of customary law.3Fifth, the fact that IHL is binding on non-State parties engaged in internalconflicts indirectly implies that they, too, are bound to comply with IHRL, at 1 See Jean Pictet, Développement et principes du droit international humanitaire, Pedone, Paris, 1983, p. 78. 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 spe- cialis, 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 Manuel Pérez González, “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.
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least concerning non-derogable rights. Sixth, the link between these twobodies of law will allow the mechanisms established by both to be used toguarantee respect for the right of victims to humanitarian assistance and toensure that States fulfil the duties associated with this right. Lastly, the reco-gnition of the hard core of obligations relating to humanitarian assistance asobligations erga omnes deriving from jus cogens norms can be deduced froman analysis of these two areas of law.
Humanitarian assistance and the right to life There is no doubt that States have an obligation to respect and above all to ensure respect for the right to life of all the individuals within its territoryand subject to its jurisdiction.4 This not only implies that States must abstainfrom directly violating this right, but also, and this is the interesting point,that they must take all necessary steps to ensure that this right is not abused.
“Taking all necessary steps” could be construed as a duty to prevent and prepare for human disasters, but there is absolutely no question that it esta-blishes the duty of States to take positive action to eradicate or alleviate theeffects of any emergency situations.
The duty to guarantee the right to life puts the State in the position of guarantor, so that in the event of wilful omission, the State could be con-sidered directly responsible for any resulting loss of life.
This duty to take positive action implies that States have a duty to ensure that the population affected by a crisis is adequately supplied withgoods and services essential for its survival and, if they are unable to do so ortheir efforts fail, to allow third parties to provide the required relief supplies.
The two aspects of this obligation, the duty to provide humanitarian aid andthe duty to allow others to provide it, are very closely linked, as the latterpresupposes the existence of the former.
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).
04_article Stoffels 18.10.2004 8:58 Page 518 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps All this has direct consequences of a practical nature. The link bet- ween humanitarian assistance and the right to life means that the duties ofthe parties to a conflict in this respect bestow the right to receive humani-tarian assistance offered by third parties on all the victims of all conflicts.
Although the right to life, which is at the root of the right to humani- tarian assistance, cannot be derogated from, it is not an absolute right andcan be limited in times of armed conflict. And, as pointed out above, it is thelaw of armed conflict that establishes the substance of this right and the limi-tations to it.
In spite of the fact that the right to humanitarian assistance, arising from the right to life, is individual, there are two factors that affect its treat-ment as such. First, a crisis that deprives an individual of the basic necessitiesof life affects a group of people, all of whom must be helped. Second, viola-tions of this right are usually committed on a collective scale: the right tohumanitarian assistance is generally denied to a group of people or to anentire population and not to a particular individual.5 Humanitarian assistance and international humanitarian law The enshrinement of the right to humanitarian assistance in IHL is grounded in two of the principles on which this entire body of law is based: the duty to distinguish between the civilian population and comba-tants and the duty to ensure respect, protection and humane treatment forpeople not or no longer participating in the hostilities. The broad concept of protection established under this principle6 clearly encompasses assis-tance for people in need and, as such, is established in conventions and pro-tocols.
With regard to international conflicts, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War establishesexplicitly that States have the duty to provide humanitarian aid to the civi-lian population under their control (non-nationals, whether free or detai-ned, and the population of occupied territories) of the adverse party7 and, ifunable to do so, are bound to accept the offer of third parties to provide the 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, 04_article Stoffels 18.10.2004 8:58 Page 519 IRRC September 2004
required aid.8 However, the duty of States to provide humanitarian assistanceand to allow others to do so for their own nationals is not expressly laid downin this instrument.9 The right of the nationals of neutral States to humanita-rian aid is not provided for in it either, although it was later included in itsFirst Additional Protocol.10 The Fourth Geneva Convention only establishes the duties of States and the rights of victims in relation to humanitarian assistance in interna-tional armed conflicts or in situations of occupation. In the case of internalconflicts, however, the existence of these duties and rights can be clearlydeduced from Article 3 common to the four Geneva Conventions, in par-ticular from the prohibition of violence to life and person.11 This prohibition can be violated by act or omission. If by omission, it must be voluntary and a prior positive obligation must exist, in this case theobligation of the authorities of a State and other parties under IHRL toensure that the needs of the civilian population are adequately met.
Article 18 of Additional Protocol II, applicable in non-international armed conflicts establishes the right to humanitarian assistance, imposing onthe parties to conflict the obligation to accept humanitarian aid essential tothe survival of the population.12 In any event, in view of the fact that common Article 3, as observed by the International Court of Justice, establishes that there is a hard core of fun-damental human rights belonging to all people not taking part in the hostili-ties that cannot be derogated from in international or internal conflicts and 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 neu- tral 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 obliga- tions 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 11 See Jean Pictet (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. 47; Luigi Condorelli, “Intervention humanitaire et/ou assistance humanitaire? Quelques certitudes et beaucoup d’interrogations”, in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, International Committee of the Red Cross/Martinus Nijhoff Publishers, Geneva/The Hague, 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 04_article Stoffels 18.10.2004 8:58 Page 520 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps in time of peace or war,13 the consideration that common Article 3 containsobligations relating to humanitarian assistance leads to the assertion thatthey apply to all victims in all conflicts.
It should be noted that the obligations imposed by these instruments are binding on both State and non-State parties. The latter are therefore bound tocomply with IHRL, although, as the situation now stands, compliance is limi-ted to the rights enumerated in common Article 3 and Additional Protocol II.
The link between the two bodies of law is clear in this case. Given that the right to humanitarian assistance is instrumental in guaranteeing theright to life, the obligation imposed on non-State parties to guarantee theright to humanitarian assistance effectively binds them to comply with obli-gations associated with human rights observance. It should therefore be pos-sible, in theory, to use the mechanisms provided for in IHRL to enforce thecompliance of non-State parties.
However, the source and content of the obligations binding on non- State parties differ from those of State party obligations even in non-interna-tional armed conflicts. The duty of States to provide humanitarian assistanceextends to the entire population of the nation, while non-State parties arebound to provide aid only for people under their control. The duty of a State toallow the free passage of humanitarian aid addressed to persons that are notunder its control, derives directly from IHRL and, specifically, from the obliga-tion to respect and ensure respect for the right to life of all the people under itsjurisdiction, regardless of whether or not they are in State-controlled territory.
In the case of non-State parties, however, the sole foundation for these dutieslies in the dependence of the population on the humanitarian aid offered to itand in the principles of humanity and inviolability binding on all parties.
This means that depending on whether it is a State or a non-State party, the duty of a party to a conflict to allow the free passage of relief sup-plies to people in the power of another party has a different source.
Content of the right to humanitarian assistance:entitlements of victims and humanitarian organizations and duties of parties to conflict The right of persons affected by armed conflict to humanitarian assis- tance consists of the right to receive from third parties relief supplies that 13 Legality of the Threat or Use of Nuclear Weapons, op. cit. (note 3), para. 22.
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comply with the conditions imposed by IHL. It also entitles victims todemand that their right to receive such aid be given effect. Lastly, it shouldalso imply their right to appeal to potential benefactors to come to their aid.
In the case of international conflicts the entitlement to request aid from third parties is established in Article 30 of the Fourth Geneva Convention. In thecase of internal conflicts, however, there is no provision referring either directly orindirectly to such an entitlement. This right therefore needs to be expressly ensh-rined in law or its effectiveness will not be guaranteed in cases in which the inter-national community fails to take spontaneous action, the authorities responsiblefor the victims do not disclose the situation to the outside world and the media donot have access to the affected area and are unable to sound the alarm.
Humanitarian organizations also have a right to provide humanitarian assistance. This consists of the right to offer victims the relief supplies thatthey need and the right for the offer of aid not to be unreasonably refusedwhen the needs of the victims are not met in some other way. This rightshould be regarded as a corollary to the right of victims to humanitarianassistance, without which it lacks a solid justificatory basis.
The duties of States and other parties to conflict in this regard boil down to a duty to permit the entry, passage and distribution of humanitarian aid.
They involve the following: (i) affected States must authorize the entry and passage of humanitarian aid for the civilian population in need;(ii) affected parties to a conflict must not obstruct, directly or indirectly, theentry, passage or distribution of humanitarian aid; (iii) affected parties mustmake every effort to facilitate the rapid and unimpeded passage of reliefconsignments and assist humanitarian organizations and personnel in car-rying out their work; and (iv) affected parties must guarantee the safety ofrelief supplies and humanitarian personnel.
Although most of these obligations are expressly established in the Fourth Geneva Convention14 and are therefore already considered part ofcustomary international law, some of them, particularly the duty to assisthumanitarian organizations in carrying out their relief mission and the dutyto protect relief consignments and relief personnel, are only established ingeneral terms in Additional Protocol I15 for international conflicts.
However, recent international practice, observed essentially in the declarations and resolutions of international bodies (Commission on Human 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.
04_article Stoffels 18.10.2004 8:58 Page 522 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps Rights, United Nations Security Council and General Assembly, EuropeanUnion, among others16) and in reports issued by human rights monitoringbodies17 and States, shows a general acceptance that these obligations applyto all States and to all types of conflict.
With regard to internal conflicts, the succinct wording of common Article 3 and Article 18 of Additional Protocol II makes it difficult todirectly deduce any more than the obligation to authorize and refrain fromobstructing the entry and passage of humanitarian aid. However, recentinternational practice particularly since the end of the Cold War shows thatin this case also, as above, the obligation of all parties to a conflict to allowthe free passage of humanitarian aid has become part of customary law. Thesubstance of this obligation is basically the same as that established in theFourth Geneva Convention and Additional Protocol I for internationalconflicts.
Sieges, embargoes and blockades as factors limiting the right to humanitarian assistance The interests underlying the recognition of the right to humanitarian assistance are also reflected in other areas: in the rules regulating the conductof hostilities and the way in which the United Nations Security Councilimposes embargoes on States.
With regard to the conduct of hostilities, the Protocols Additional to the Geneva Conventions prohibits the parties to an armed conflict, be it interna- 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 per- emptory 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 hu- manitarian organizations and personnel, guarantee the safety of humanitarian personnel and relief consign- ments; (vi) in addition, they condemn violent acts committed by the parties to conflict directly against huma- nitarian 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.
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tional or internal, from using starvation as a method of warfare18 and, by exten-sion, from imposing embargoes, blockades or sieges that endanger the lives ofthe civilian population by depriving it of resources essential for survival.19 When such strategies are used, certain conditions must therefore be met. In the case of blockades and other such military techniques, it is neces-sary to establish exemptions for goods that are vital to the survival of thepopulation. In the case of sieges, essential supplies must be allowed in or peo-ple in the besieged area must be allowed to leave. As both options are pos-sible and lawful, the choice of one or the other may lead to a clash of militaryinterests between the warring parties, making it difficult to ensure that theoption most beneficial to the victims is taken.
The recent siege of Monrovia must therefore be considered unlawful in that it directly affected the civilian population. Civilians in the besieged areadid not receive adequate supplies and services to ensure survival and weregiven no minimum guarantee of safety enabling them to leave.
Although there are no specific provisions limiting the power of the UN Security Council to adopt measures — both in cases where IHL is appli-cable and in others where it is not — that could lead to a situation in whichthe inadequacy of supplies for the general population of a country endangerspeople’s lives, in imposing sanctions the Security Council makes exceptionson the grounds of humanitarian necessity, permitting the entry of essentialsupplies.20 Such a practice can only be attributed to the existence of a duty tofulfil obligations relating to humanitarian assistance, a duty based on therequirement that the Security Council must comply with IHL and IHRL.
This assumption has hitherto not been questioned.
Responses to violations of the right to humanitarian assistance
Given that the right to humanitarian assistance is directly derived from the fundamental norms of both IHRL (those concerning the right to 18 Article 54 of Additional Protocol I, which is considered part of customary law, as demonstrated by the fact that under Article 8.2.b (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 distinc- tion 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 responsi- ble 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.
04_article Stoffels 18.10.2004 8:58 Page 524 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps life) and IHL (those concerning the principle of inviolability21 and, as theInternational Court of Justice has observed on several occasions,22 that thesetwo concepts undoubtedly form the hard core of obligations erga omnes, itcan be concluded that the right to humanitarian assistance generates obliga-tions erga omnes for all parties to a conflict.
Obligations erga omnes are characterized by certain conditions. Any State of the international community may concern itself with the enforce-ment of such obligations without its actions being construed as interferencein the domestic affairs of the State in question. The international commu-nity as a whole (and not just the States directly involved) has the legal rightto adopt the necessary measures to galvanize the offending State into com-plying with its obligations.
It is submitted that the latter is not an effective way of enforcing these obligations, as serious violations of the right to humanitarian assistancecould go without redress if the international community fails to take effec-tive and timely action, even when a particular State or group of States iswilling to do so.
Legal mechanisms, as one of the types of mechanism available to States for the peaceful resolution of international disputes, in this case humanita-rian assistance issues, seem to be a priori inadequate for this purpose.
The fact that such mechanisms, particularly the jurisdictional mecha- nisms currently in force, entail a long-drawn-out process and cannot be usedto deal with the behaviour of non-State parties severely limits their utility.
Political mechanisms are particularly effective for settling disputes of this kind, because they are more flexible and can be used to deal with theconduct of non-State parties. It is important to remember that the majorityof recent wars have been internal conflicts, which are generally characteri-zed by more serious and more widespread violations of the right to humanita-rian assistance.
In institutionalized cooperation, there are a number of international organizations, as mentioned above, that play a key role not so much as adirect or indirect agent in the peaceful resolution of disputes, but in pres-suring States and other parties to conflict into fulfilling their obligations in 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.
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this regard. However, the reluctance of such organizations to use themechanisms available to them to deal with conflicts or disputes that are notof any special concern to them undermines their effectiveness.
There now follows a more in-depth examination of the effectiveness of the implementation mechanisms provided for under IHRL and IHL and therole of the UN Security Council in this area.
Implementation mechanisms provided for under international human rights law The very nature of violations of the right to humanitarian assistance limits the effectiveness of IHRL mechanisms in ensuring enforcement: (i) humanitarian assistance is an individual right that is generally abused ona collective scale, and the mechanisms tasked with guaranteeing individualprotection are unable to provide redress against such violations;23 (ii) theright to humanitarian assistance is linked to emergency situations, and measures can be effective only if implemented immediately; (iii) measuresaimed at promoting respect for the right to humanitarian assistance progres-sively are not, in principle, very effective, because violations are committedin a specific and exceptional context; and (iv) violations are committed notonly by States but also by non-State parties for whose conduct the State isnot responsible.
None of the conventional mechanisms provided for under the International Covenant on Civil and Political Rights or within the frame-work of the Council of Europe, for example, are capable of effectively en-forcing the right to humanitarian assistance.
The purpose of the periodic reporting procedure set up by the Covenant is to monitor the progressive implementation of the protectionsthat it establishes. However, reports are submitted, and therefore analysed, atfive-year intervals, and many States engaged in conflict fail to comply withthis reporting obligation.24 The inter-State complaints procedure involves a long-drawn-out pro- 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’Ivoire, and Afghanistan. Human Rights Committee, Annual Report of the Human Rights Committee, 30 October 2002, UN Doc. A/57/40, Vol. I, 04_article Stoffels 18.10.2004 8:58 Page 526 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps The individual communications procedure establishes the exhaustion of domestic remedies as a requirement of admissibility and also involves alengthy process, with no provision for the adoption of interim measures. Thedecisions and views issued by the Human Rights Committee refer only toindividual cases, and the role it plays is reactive rather than preventive.
Taking a case to the European Court of Human Rights is likewise a lengthyprocess, no direct provision is made for interim measures25 and the role of thecourt is reactive rather than preventive.
None of the above mechanisms has yet been used to enforce the right Extra-conventional monitoring mechanisms within the United Nations system, particularly the one established by Resolution 1235 (XLII)of the United Nations Economic and Social Council (ECOSOC), must beassessed in a different light.
The fact that these mechanisms are “extra-conventional” and are therefore outside the treaty framework means that they can be applied to agreater number of States. Most of them do not require the exhaustion ofdomestic remedies, they can be applied to all parties to a conflict and areboth reactive and preventive.
The monitoring procedure focuses on the analysis of “situations” in which human rights are violated, taking into account the recurrence of vio-lations over time rather than the number of individuals affected. This allowsfor the analysis of individual human rights violations committed on a collec-tive scale (which is one of the characteristics of such violations, as men-tioned above). Its effectiveness in this area is demonstrated by the fact that itis commonly used to analyse violations of this kind.26 Fact-finding mechanisms can be set up to gather information, and the resulting reports are used by the Commission on Human Rights and other inter-national organizations to pressure States into compliance with their obligationsin this respect. It is an entirely public procedure from start to finish, and resolu-tions can be adopted at any time to induce the offending party to comply.
It is therefore perhaps the most effective type of human rights imple- mentation mechanism that can be used to enforce the right of victims ofarmed conflict to humanitarian assistance.
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.
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However, other factors that influence how the Commission on Human Rights acts can impair its effectiveness: the consent of the State under inves-tigation is required before special fact-finding bodies can gather informationin situ; whether these mechanisms are used to their full potential andwhether effective measures are taken to deal with detected violationsdepends on the political will of the members of the Commission; and therecommendations and resolutions of the Commission are not binding onStates.27 It would perhaps be useful to create a thematic procedure to carry out a global, but at the same time specific, analysis of violations of the right tohumanitarian assistance and to adopt measures providing protection in cer-tain particularly serious situations.
An examination of action taken by the Commission on Human Rights with regard to recent conflicts also reveals a number of general features thatcan be added to those enumerated above, showing how international organi-zations deal with these matters: (i) repeated express reference is made to IHLas a branch of law that is directly applicable in the analysis of human rightsabuse; (ii) although the Commission takes action against the conduct ofboth States and non-State parties, there appears to be a certain reticence onits part to call on non-State parties directly and explicitly to respect humanrights; in such cases its exhortations are grounded in IHL, requiring the par-ties to cooperate in ensuring respect for these rights; and (iii) it focuses onthe rights of humanitarian organizations and personnel rather than on therights of those who are in need of relief supplies, to the extent that the rightof victims to humanitarian assistance is mentioned only in passing.
The functions of the United Nations Office of the High Commissioner for Human Rights (OHCHR) include promoting and protecting humanrights, and it therefore has a very useful role to play in ensuring respect forthe right to humanitarian assistance. Under its broad mandate, the OHCRHcould (with the necessary means and support) make an important contribu-tion to asserting and enforcing this right.
The recently created post of Special Rapporteur on the right to food28
could have an important role to play in this domain, but the activities as-signed to it are centered on seeking, receiving and responding to informa- 27 See, among others, José A. Pastor Ridruejo, “La protección de los derechos humanos en las Naciones Unidas”, in Cursos de Derecho Internacional Vitoria-Gastéiz, Universidad del País Vasco, Vitoria, 1988, pp. 39 ff.
28 United Nations Commission on Human Rights, The right to food, 17 April 2000, UN Doc. E/CN.4/RES/2000/10.
04_article Stoffels 18.10.2004 8:58 Page 528 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps tion, establishing cooperation with governments and identifying emergingissues related to the right to food. In short, they are activities that may havean important effect in the medium and long term, but not to respond directlyto an actual emergency situation.29 Implementation mechanisms provided for under international humanitarian law The first conclusion that can be drawn from an analysis of implemen- tation mechanisms established under IHL is that individuals are largelydependent on the political will of States to use the means at their disposal toensure implementation and enforcement.
Not only do individuals have no standing in international mechanisms concerned with any kind of armed conflict, but IHL provides for even fewermechanisms in internal conflicts (for example, no provision is made forrecourse to a Protecting Power) and those that do exist are less effective, par-ticularly when it is necessary to compel non-State parties to comply withIHL.
It is also evident that the conflict situation itself, particularly in inter- nal conflicts, hinders the implementation of mechanisms established underdomestic legislation and diminishes the effectiveness of recourse to thecourts. These mechanisms, too, are largely ineffectual when the offender is anon-State party or a member thereof. A weak administrative infrastructure,the absence, in many cases, of a clear chain of command, inadequate trainingof both the officers and rank and file of the militia and the type of militarystrategies employed not only hinder efforts to implement IHL, but also makeit difficult to monitor the situation. In such cases, government authoritiesare practically powerless to compel rebel forces to fulfil their obligations.
However, the commitment of States to respect and ensure respect for IHL applies: (i) in international law applicable in both international andinternal conflicts; (ii) in conventional and customary law; (iii) to States thatare directly affected and to other States; (iv) in relation to grave breachesand other violations. With regard to the latter, the commitment applies inall areas regulated by this body of law and therefore to all violations associa-ted with humanitarian assistance; and (v) in relation to violations 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.
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committed by the State providing humanitarian assistance, by the State oftransit, by the State receiving aid, by the parties to conflict and even by thehumanitarian organizations.
States therefore have not only the legal right, but also the legal obliga- tion, to take action in the face of such violations. This means that theyshould use all the means at their disposal to deal with violations committedby any party anywhere in the world, and not just those committed in neigh-bouring nations or by particular States or parties to a conflict.
It can therefore be considered unlawful for a State to maintain a pas- sive attitude when it is in a position to take action, because the failure torespond allows the rights of victims protected under IHL to be abused. Inview of the commitment of States to respect and ensure respect for IHL, it is,at best, inappropriate for them to focus on repressing or condemning viola-tions of the right to humanitarian assistance in order to avoid greater involve-ment in the conflict. Such a course of action is particularly wrong whenother more serious violations, which are sometimes the root cause of theemergency situation affecting the civilian population, are ignored. Whenthis occurs, humanitarian assistance no longer fulfils the purpose for which itwas intended.
Recourse to a Protecting Power, a specific mechanism established under IHL, can in theory serve as an effective means of guaranteeing theright to humanitarian assistance. The mission of a Protecting Power is tocooperate with the parties in IHL implementation and to monitor com-pliance. This provides an opportunity to determine the existence andextent of humanitarian needs and ensure that the relief supplies reach theirintended destination and the control measures authorized by the States areadequate. The Protecting Power can play a mediating role between andamong the parties to a conflict, humanitarian organizations and the civilianpopulation. It can also use its good offices, cooperate in ensuring the safepassage and distribution of humanitarian aid and appeal to internationalsolidarity.
In short, the existence of a neutral third party that assists the parties to a conflict in implementing IHL, has direct access to the authorities andthe victims under their control, helps in relief efforts, acts as a mandatory ofthe international community to ensure that the parties to conflict fulfiltheir obligations, has rights of initiative, visitation, mediation and assis-tance and tenders its good offices, among other things, would seem to be auseful and effective means of ensuring respect for the right to humanitarianassistance.
04_article Stoffels 18.10.2004 8:58 Page 530 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps However, the results so far have been disappointing. Very little use has been made of this mechanism, and when it has been used the results havenot been encouraging.30 Instead, the functions of the Protecting Power are most often per- formed by the International Committee of the Red Cross31 as a de facto sub-stitute for it. In this role, it has provided mediation between parties to aconflict, offered its good offices, ensured the protection of civilians, moni-tored the safe passage and distribution of humanitarian aid and providedhumanitarian assistance directly.
It should be noted that since this mechanism is not expressly applic- able in non-international conflicts, the rights of victims of IHL violationscommitted in such conflicts have less protection. The ICRC has un-doubtedly managed to improve this situation to some extent by offering toperform the functions of a Protecting Power, as established in IHL in relationto international conflicts, for the parties to internal conflicts, which often,although not always, accept the offer.32 The humanitarian International Fact-Finding Commission is another of the mechanisms established by IHL that can be used to ensure respect forthe norms it contains.
The purpose of the Commission is to investigate violations of IHL and offer its good offices to bring them to an end. It can therefore play a usefulrole in the area of humanitarian assistance. Although the use of this mech-anism has certain advantages, such as immediate activation when a violationis committed without any need for an ad hoc agreement, it also has certain 30 For example, the Suez Canal crisis, the Goa conflict and the conflicts between France and Tunisia and 31 See, among others, François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, International Committee of the Red Cross, Geneva, pp. 985-1061; Christian Dominicé: “La apli- cación de las leyes humanitarias” in Las dimensiones internacionales de los derechos humanos, Vol. II, Serbal/UNESCO, Barcelona, 1984, pp. 586-608; Michel Veuthey, “De la guerre d’Octobre 1973 au conflit du Golfe 1991: les appels du CICR pour la protection de la population civile”, in Astrid J.M. Delissen and Gerard J.
Tanja (eds.), Humanitarian Law of Armed Conflicts, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, pp. 527-543; Michel Veuthey, “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, 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 indepen- dent institution and intermediary”.
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shortcomings that warrant criticism and impair its effectiveness: only theState has the right to request an inquiry; only grave breaches or other seriousviolations of IHL come within its competence; its functions are confined tofact-finding and good offices; its conclusions, observations and recommenda-tions are not, in principle, made public; and no provision is made for imple-mentation in internal conflicts.
In any event, although there is clearly room for improvement, the creation of a permanent body of this kind within the framework of IHL mustbe regarded positively. The International Fact-Finding Commission couldreplace or complement similar ad hoc bodies created to deal with certainconflicts, such as those created by the Commission on Human Rights andthe United Nations Security Council, and by specific agreements.33 This section ends with a brief reference to mechanisms used to prose- cute and punish individuals who violate IHL, which act as a deterrentagainst such violations.
Although the two most recent predecessors of the International Criminal Court (the ICTY to prosecute persons who committed violationsof IHL in the former Yugoslavia and the ICTR to prosecute those who com-mitted acts of genocide and other serious violations of IHL in Rwanda) makeno specific provision for violations relating to humanitarian assistance, thebroad categories of crimes established in their Statutes allow for the prosecu-tion and punishment of violations of this kind. Attacks on humanitarianpersonnel and the use of starvation as a method of warfare, for example, areclearly included as punishable crimes under these Statutes.
In addition to the generic categories of crimes established in previous statutes, the Rome Statute of the International Criminal Court expresslyincludes a series of acts that are closely linked to humanitarian assistance.
Curiously, these acts are established as punishable crimes in all three of thecategories defined in the Rome Statute, namely genocide, crimes againsthumanity and war crimes.34 It is regrettable, however, that the use of starva- 33 Impartial commission of experts set up to examine and analyse information on violations of interna- tional 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 Christian Tomuschat, “Current issues of responsibility under international law”, in Cursos Euromediterráneos Bancaja de Derecho Internacional, CIBPD, Valencia, Vol. IV, 2000.
34 Articles 6.c, 7.1.b, 8.2.b (iii), 8.2.b (xxv) and 8.2.e (iii) respectively.
04_article Stoffels 18.10.2004 8:58 Page 532 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps tion as a method of warfare is not expressly established as a punishable crimein non-international armed conflicts. Nevertheless, it seems clear that thecompetence of the Court to hear such cases will be recognized once the cus-tomary law status of the prohibition of such conduct is accepted and a linkestablished with the right to life, the right to human dignity, the right not tobe subjected to cruel, inhuman or degrading treatment and other such rights.
As a result of the recent concern of the United Nations Security Council (UNSC) for the right to humanitarian assistance, the Council hasbecome very important as a means of enforcement.
By becoming involved in this issue, it not only confirms the customary law status of the norms concerning humanitarian assistance, but also esta-blishes a direct link between violations of these norms and internationalpeace and security. It goes so far as to assert that depriving victims of hu-manitarian aid is a threat to world peace and security,35 an assertion thatgives it the power to adopt whatever measures it considers necessary to putan end to such situations.
UNSC action can be classified into different levels, although more than one level of action can be taken in the same conflict: 36 (i) appeal to theparties in a more or less peremptory tone to fulfil their obligations;37(ii) grant powers to peacekeeping operations to facilitate the provision ofhumanitarian aid by humanitarian organizations. This interposition betweenthe parties serves to create a humanitarian space that facilities the provisionof humanitarian assistance; (iii) protect and escort humanitarian relief sup-plies, personnel, convoys and premises; the use of force is permitted in self-defence against attacks by parties to the conflict, uncontrolled elements ofthe fighting forces, bandits, thieves or starving people; and (iv) imposehumanitarian assistance; States and peacekeeping forces are authorized touse force to implement the right to humanitarian assistance.
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 hu- manitarian personnel to populations in need in Liberia”.
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It should be noted that the fourth level relates to States and peace- keeping forces imposing humanitarian assistance against the will of the partiesto the conflict, if necessary, while the third level could relate to the protectionof relief supplies provided with prior consent in a particularly unstable conflictrather than to the imposition of humanitarian assistance. At the fourth level,competences necessarily derive from Chapter VII of the Charter of the UnitedNations, while at the third level they may also derive from Chapter VI.
Implementation of humanitarian assistance I: offer, entry, passage
and distribution
The above analysis of the legal basis for humanitarian assistance and the way in which international law protects the victims of related violations leads toan examination of the legal aspects of implementation. The first part looks at whoshould seek authorization for the offer, entry, passage and distribution of humani-tarian assistance, how and to whom the application should be made and the resul-ting consequences, while the second part examines the requirements with whichhumanitarian assistance must comply for the parties to be bound to accept it.
The link between humanitarian assistance and the right to life and the consideration of the ensuing obligations as erga omnes, giving all members of theinternational community a legitimate interest in this issue, confer a right of initia-tive on the latter. Consequently, the offer of humanitarian assistance to those inneed by any member of the international community, without the prior consentof the State in question, does not constitute an internationally wrongful act.
States, international organizations and public humanitarian organiza- tions therefore have the legal right to offer humanitarian assistance to victimsin a humanitarian emergency, without this being considered unlawful or eveninappropriate.
It also seems clear that NGOs, as private entities, are permitted by law to offer victims humanitarian assistance, there being no legal provision tothe contrary. Furthermore, the legality of such conduct is expressly enshrinedin humanitarian law texts in respect of humanitarian organizations providingrelief supplies both in international conflicts and internal conflicts38. Special 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.
04_article Stoffels 18.10.2004 8:58 Page 534 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps mention should be made of the ICRC, which is recognized in IHLConventions as an entity with an international mandate in this field.
In view of the fact that States have at least a moral duty to cooperate in resolving humanitarian issues and the repeated appeals of international orga-nizations for international solidarity, it is submitted that such action is notonly lawful, but also advisable and indeed necessary for the effective imple-mentation of the rights of victims.
Authorization of the entry, passage and distribution of humanitarianassistance Once the offer of humanitarian assistance has been made, both parties (offeror and offeree) must agree on the terms and conditions of entry, passageand distribution.
Humanitarian assistance must be authorized by the State of transit and/or destination for it to be considered lawful.
The need for authorization in international conflicts poses no problem, as Article 23 of the Fourth Geneva Convention and Articles 70 and 71 ofAdditional Protocol I stipulate that it must be granted, a stipulation recalledin Resolutions 43/131 and 45/100 of the United Nations General Assembly.
It should be noted that in the case of occupied territories, authorization must be obtained from the occupying power and not the legitimate authori-ties (Article 59 of the Fourth Geneva Convention). This is undoubtedlybecause it is the occupying power that actually controls the population forwhich the relief supplies are intended and the territory through which theywill pass and where they will be distributed.
In internal conflicts the authorization of the State is also required, whether the humanitarian aid is intended for people in areas controlled bythe State or by a non-State party.
This requirement is logical in the first of these cases, when humani- tarian assistance is intended for the population in State-controlled territoryor when it must pass through such territory and is compatible with the provi-sions that apply in international conflicts. However, when the aid is inten-ded for people in areas controlled by rebel forces and can be transported to itsfinal destination without passing through State-controlled territory, require-ments differ from those applicable in international conflicts.
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In such cases, although the wording of common Article 3 could lead to a different interpretation,39 Article 18 of Additional Protocol II40 would seemto indicate that it is necessary to obtain the authorization of the State inwhose territory humanitarian activities and aid distribution are to be carriedout. This interpretation is confirmed by the positions adopted by States atthe Diplomatic Conference that adopted the two Additional Protocols41 and,subsequently, by resolutions passed by the United Nations General Assemblyon this subject and the practice of donor States and international organiza-tions, which very rarely provide humanitarian assistance in rebel-controlledareas without the prior consent of the State involved and, when they do so,it is generally with the utmost discretion.
However, the humanization process has also influenced this area of law, and the requirement to obtain authorization must be taken in conjunc-tion with the obligation to grant authorization when humanitarian assis-tance meets the requirements that make it lawful and necessary for theimplementation of the rights of victims. In actual fact, the main thrust ofrecent developments reveals a focus on limiting the right to refuse humanita-rian aid rather than on eliminating the authorization requirement.
The requirement to obtain consent implies that humanitarian activi- ties carried out without the authorization of the State in question are notprotected under IHL and can be construed as unlawful when implementedby a State or an international organization on the grounds that that they vi-olate the principle of sovereignty and non-interference in the domesticaffairs of a State.
However, the fact that “clandestine missions” are not protected as such by international law does not mean that they are completely unprotected.
The failure to obtain authorization to provide relief does not convert huma-nitarian personnel and supplies or their premises and means of transport intomilitary targets. They retain the status of civilians and civilian objects and, 39 The wording of this article, which provides that an “impartial humanitarian body (.) may offer its ser- vices 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 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.1, 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.
04_article Stoffels 18.10.2004 8:58 Page 536 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps as such, are entitled to protection. Evidently, this protection does not extendto preventing clandestine humanitarian workers from being deported orsanctioned or relief supplies from being confiscated by the governmentauthorities.
Unlawful refusal to grant authorization: consequences and remedies The requirement to obtain authorization to provide humanitarian assistance must be taken, as mentioned above, in conjunction with the ob-ligation of the authorities to grant it.
Apart from the mechanisms described above, when one State wishes to take action against another that has refused to authorize humanitarian as-sistance, it has four options open to it: (i) establish dispensaries, clinics ordistribution centres in the territory of a third-party State, avoiding any directconnection with the State that has refused the offer of aid. Such a course ofaction is lawful and entitled to protection; (ii) put the aid at the disposal ofpublic or private humanitarian organizations, so that it can be forwarded tothe victims with the consent of the State in question. Such a course of actionis lawful and entitled to protection; and (iii) put the aid at the disposal ofhumanitarian organizations, which then cross the State’s borders without itsauthorization. The lack of international response, formal or otherwise(except, of course, from the affected State) to putting humanitarian aid atthe disposal of NGOs and other international organizations42 to be deliveredclandestinely to the victims of conflicts, when humanitarian needs are par-ticularly acute, is sufficient evidence that there is an international normthat, at least in statu nascendi, supports the legality of such a course of action;and (iv) directly undertake a “clandestine” operation in the territory of theState.
The latter cannot be considered a lawful countermeasure, first, because it does not serve the purpose of a countermeasure (that of compelling thedefaulting State to fulfil its obligations) and, second, because measures ofthis kind can be adopted only by the injured State (only States whose offer ofaid had been unlawfully refused would be legally entitled to take suchaction).
This gives rise to a manifest incongruity. On the one hand, in the face of conduct that violates norms considered to be fundamental to the interna-tional community, such as those prohibiting serious violations of basic 42 This was common practice in conflicts such as those in Ethiopia, Sudan, Iraq and the former Yugoslavia.
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human rights, States are powerless to take countermeasures except whenthey are directly affected by the violation, for example, when their ownnationals are victims.
On the other hand, the same conduct also violates a norm that pro- tects the interest of a State (the right for its offer of aid not to be unreason-ably refused), which, as such, is not comparable with the interests protectedby the norms referred to in the previous paragraph. The fact that the State isdefending its own interest is what confers legality on its response rather thanthe defence of the fundamental interests of the international community.
Furthermore, if a State has a particular interest in ensuring respect for the rights of certain victims in the power of a State that systematicallyabuses those rights (refusing all offers of humanitarian aid to cope with theemergency situation), it has only to offer to provide humanitarian assistance,which will naturally be refused, to confer legitimacy upon its response to theviolation.
A measure of this kind (“a clandestine mission”) could be regarded as what Arangio-Ruiz terms an “interim measure of protection”43 to be takenwhen the fundamental interests of the international community are at stakein a humanitarian emergency, provided that it is generally accepted thatsuch measures can be adopted by States unilaterally in situations other thanthose involving the break-up of a State.
It could also be considered a measure taken in response to a “state of necessity”, provided that it is accepted that this involves the defence notonly of the national interest, but also of the fundamental interests of theinternational community, as proposed by Sandoz.44 It is submitted that to consider “clandestine” humanitarian assistance as a countermeasure based on a broad conception of the purpose of this form ofaction, as part of a response to a state of necessity, or as an interim measure toprotect the fundamental interests of the international community, constitutes aninterpretation that lies in the grey area between de lege ferenda and de lege lata.
It can therefore be seen that there is tension between the right of the State to decide what and who can enter its territory, the right of victims toreceive humanitarian assistance and the interest of the international commu- 43 See Gaetano Arangio-Ruiz, “Fourth Report on State responsibility”, UN Doc. A/CN.4/444/Add. 1, 1992, 44 Yves Sandoz, “‘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. 234 (the argument revolves around the imposition of aid on the grounds of humanitarian necessity).
04_article Stoffels 18.10.2004 8:58 Page 538 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps nity in enforcing that right. Although the first of these rights has taken prece-dence over the others to date, a time must come when the rights and interestsof victims and the international community prevail over the rights of States,especially now that a humanization process is influencing international lawand the recent introduction of axiological values is modulating its content.
It should also be possible to use the same argument to justify the action of third States when they support humanitarian organizations that provideclandestine humanitarian assistance following the unlawful refusal of a Stateto accept an offer of aid.
But it is one thing to justify clandestine humanitarian assistance in a State that has unlawfully refused an offer of aid, and quite another to justifythe forceful imposition of humanitarian assistance on it, using armed force totake supplies into its territory or to protect them. These two circumstances donot necessarily concur in all instances. Humanitarian assistance may be pro-vided clandestinely in areas controlled by non-State parties, with their autho-rization. In such cases armed force is not necessary except in self-defence. Onthe other hand, when the relief supplies pass through or are intended for areascontrolled by the State, the use of armed force is likely to be unavoidable.
The collective security system established in the Charter of the United Nations must be a closed system with no gaps, although cracks may be causedor justified by the protection of fundamental human rights.
The system must work effectively, otherwise it would not be “fair” (morally acceptable) to condemn (legally reproach) a State for opening up acrack on these grounds as a last resort when the system remains paralysed.
In short, it is submitted that, as the situation now stands, the use of armed force as a last-resort reactive measure in response to the unlawful refusalof a State to accept humanitarian assistance essential to the survival of thepopulation cannot be considered lawful, but who would condemn or takeaction against such humanitarian intervention when the machinery provided for under international law fails to work effectively and the interven-tion has no further consequences in international relations? This is a case inwhich moral and legal considerations clash, leaving no choice but to turn ablind eye to unlawful action that is permitted, and even dictated, by moralprinciple. This brings to mind the wisdom of Roman law expressed in theadage summum jus summa injuria (extreme law is the greatest injury); an overlylegalistic approach would lead to the condemnation of a State which, facedwith the paralysis of the system, seeks to give effect to one of the structuralprinciples of contemporary international law, namely respect for human rights.
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Implementation of humanitarian assistance II: requirements for
entitlement to protection
The norms that govern the right of the civilian population to humani- tarian assistance in a humanitarian crisis caused by armed conflict reflect thetension and balance between the humanitarian interests and the militaryinterests at the basis of IHL.
While the rights of victims to humanitarian assistance must be as extensive as possible to achieve maximum protection, every effort must bemade to ensure that the aid provided does not directly or indirectly favourone of the parties to the conflict. To this end, humanitarian aid must complywith certain requirements, and the parties involved are entitled to ensurethat they are in fact met. A party may therefore refuse to authorize humani-tarian assistance if it does not meet the established requirements. In suchcases, the relief action is no longer protected as such under IHL.
It is understood that humanitarian assistance is acceptable when it is humanitarian, impartial and neutral. Yet even when humanitarian assistancecomplies with these conditions, as laid down in IHL, it is still often preju-dicial to the interests of one of the parties to the conflict.
This is particularly true in today’s conflicts, when part of the funding for belligerents (particularly non-State forces) may sometimes at least par-tially come from humanitarian aid. Sometimes, the object of the war is to eli-minate the adverse party (not just the combatants, but all those who do notsupport the same cause or belong to a different ethnic, religious or culturalgroup). In such cases, States use humanitarian assistance for political purpo-ses, converting humanitarian activities into political action.
The delivery of relief supplies to the civilian population is often hin- dered by humanitarian agencies that do not ensure compliance with the established requirements, or by parties to a conflict which take possession ofhumanitarian assistance from relief operations that are properly planned andconducted by humanitarian agencies and use it for their own benefit. A clearexample of such a situation was the conflict in Somalia, where humanitarianaid ended up as the main source of provisions for the warlords and served toprolong and escalate the conflict.
The principle of humanity dictates that such aid should consist of goods and services essential to the survival of the population, that it shouldbe provided to the civilian population deprived of the basic necessities of life 04_article Stoffels 18.10.2004 8:58 Page 540 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps as a result of conflict, and that the purpose of the aid should be to alleviatehuman suffering and protect human life, health and dignity.45 This principle is therefore violated when the purpose of the humanita- rian aid is to support, directly or indirectly, one of the parties to conflict. It isnot violated, however, when the motivation is not exclusively or principallyhumanitarian, provided that the aid is used properly. For example, if a Stateoffers and provides humanitarian assistance with a view to disposing of sur-plus agricultural produce, such aid is considered to be humanitarian and there-fore protected under IHL, provided that it is delivered to the needy civilianpopulation for the purpose of alleviating human suffering.
Observance of the principle of humanity is reflected in the way in which assistance is provided and particularly in its compliance with otherestablished requirements. Aid that is not neutral or impartial is unlikely tobe considered humanitarian. Furthermore, the parties to a conflict are boundto respect the humanitarian nature of relief supplies and must not attempt tochange their destination or purpose.
The principle of impartiality requires that humanitarian aid must be provided in a non-discriminatory manner46 and must be proportionate to theneeds of the population.
Non-discrimination implies that no distinction should be made bet- ween the beneficiaries of aid for the sole reason of belonging to a particulargroup, except on the grounds of humanitarian necessity. Aid must thereforebe proportionate to the needs of the population in scope and in duration.
Three types of impartiality can be distinguished: overall impartiality; resulting impartiality; and non-discrimination. The first refers to all thehumanitarian action taken by a particular entity, the second to the sum ofthe efforts of all entities, and the third to the absence of discrimination ineach particular humanitarian action, i.e. when no distinctions are madeother than those based on humanitarian criteria.
In theory, the most desirable is resulting impartiality, which takes into account the impartiality of all humanitarian efforts carried out by all hu- 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.
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manitarian organizations, rather than that of a particular action carried outby an individual organization. Resulting impartiality is achieved when theneeds of the population under the control of both parties to a conflict areequally covered, regardless of who provides the relief supplies to the popula-tion in the power of each party. As the situation now stands, however, thisdegree of impartiality cannot be considered to be required by law.
The need for humanitarian organizations to comply with the principle of overall impartiality is a controversial issue. In international conflicts thereis no requirement at all in this regard,47 as they are permitted to provide assis-tance to the population under the control of only one of the parties to theconflict. However, this is not the case in internal conflicts, in the light of theinterpretation given by the International Court of Justice in its 1986 judg-ment and based on the link between the principle of overall impartiality andthe principle of humanity.
It is therefore submitted that although desirable not only in observance of the principle of humanity, but also to ensure that the humanitarian mis-sion is effectively respected by parties to conflict, overall impartiality cannotbe considered a legal requirement under IHL at the present time.
Furthermore, the enshrinement of this form of impartiality in IHL would provide parties with another weapon to wield in the refusal of aid forthe population of the adverse party, thus having the opposite effect to theone intended.
The provisions of IHL do, however, require humanitarian assistance to be provided with no discrimination except on the basis of humanitarianconsiderations. Once the target population groups (children, the sick andthe elderly) and areas have been identified, such aid must be provided for thebenefit of all those in need and with access to the centres that distribute sup-plies and provide assistance.
The warring parties, too, must respect the impartiality of humanitarian efforts undertaken by humanitarian organizations and personnel, but arebound to authorize the provision of humanitarian aid to the population ofthe adverse party, regardless of whether or not the needs of the populationunder their own control are adequately met.
47 See Article 27 of the Fourth Geneva Convention, Article 25 of the Second Geneva Convention and 04_article Stoffels 18.10.2004 8:58 Page 542 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps The requirement that humanitarian assistance must be neutral stems from its humanitarian nature and the preferential treatment provided forunder IHL.
First and foremost, the principle of neutrality requires that a distinc- tion must be made between combatants and civilians. Only civilians areentitled to receive humanitarian assistance. It is therefore vital that humani-tarian organizations and personnel do their utmost to distinguish betweenthe two. However, humanitarian assistance is still protected by law evenwhen combatants manage to mingle with the civilian population and bene-fit from the aid provided, although the humanitarian organizations and per-sonnel involved have done everything they possibly can to distinguish com-batants from civilians and separate them. Despite their efforts, this minglingis unfortunately a dangerous and relatively common occurrence in camps fordisplaced people and refugees, and it is quite usual for them to contain people engaged in hostile activities both inside and outside the camp, as wellas combatants during rest periods, when they are awaiting orders and whenthere is little military activity.48 Humanitarian organizations must prevent the parties to a conflict from directly or indirectly appropriating aid intended for the civilian population,but if they are unable to do so and the warring parties seize part of the aid,the remainder in the hands of those organizations is still entitled to protec-tion. However, if an excessively large proportion of the aid is thus divertedand used to supply troops, the duty of the injured party to allow the free pas-sage of aid should be reconsidered, particularly when the situation is particu-larly prejudicial to the interests of that party and the diverted aid becomesthe basis of a war economy. An example of this was the conflict in Somaliain the early nineties, when 90 per cent of the humanitarian aid was appro-priated by the warlords for their own benefit.
The principle of neutrality requires that humanitarians refrain from engaging in hostile activities; these clearly comprise undertaking parallelactivities in support of one of the warring parties or providing aid in the knowledge that it is being used to support a particular party. Hostileconduct by humanitarian organizations and personnel would include 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.
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transporting weapons in their vehicles, storing weapons on their premises,attacking combatants, allowing one of the warring parties to use their logis-tical facilities and means of communication, spreading propaganda amongthe civilian population, using or disclosing strategic information, enlistingtroops, etc.
The possession by humanitarians of weapons for their personal defence or weapons confiscated from combatants and kept out of their reach, and theuse of private security personnel belonging to one of the warring parties fortheir premises, distribution centres or means of transport are not consideredhostile conduct.
It is considered a violation of the principle of “ideological neutrality” for humanitarian organizations and personnel to make public their opinionas to the reasons for a conflict, to support the cause of one of the parties or toexploit humanitarian issues to win support for one of the parties. This occur-red, for instance, in the Yugoslav conflict: the general public’s initial sym-pathy for the Bosnians who, according to humanitarian organizations work-ing in the area, had been subjected to large-scale genocide, soon developedinto support for the Bosnian cause and their political demands. The samecan be said of the support of international public opinion for the Kurdishpopulation in Iraq. However, humanitarian organizations and personnel arenot required to remain silent in the face of serious and systematic humanrights abuse on a massive scale.
They are legally permitted, and sometimes morally bound, to draw such situations to the attention of those in a position to provide a remedy.
Nevertheless, this is not the function of organizations that provide humanitarian assistance. There are other entities, including NGOs, themedia, States and international organizations such as those mentionedabove, which are better qualified to carry out this task and should take theinitiative in such matters, not least because a public denouncement is likelyto destroy the trust of the party concerned.
There are two sides to the coin of effective respect for the civilian population: assistance and protection. The fact that those who providehumanitarian assistance are often obliged, in the face of inaction by others,to provide protection as well generally hampers their own and other humanitarian work.
Finally, humanitarian organizations and personnel must ensure that hostile activities are not carried out on or from their premises and that thehumanitarian aid they provide is not used for the benefit of a warring party.
04_article Stoffels 18.10.2004 8:58 Page 544 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps The parties to conflict must respect the humanitarian nature of assis- tance and refrain from subjecting it to conditions that divest it of its materialand ideological neutrality.
Conclusions
This analysis of the legal status, guiding principles and implementation mechanisms of humanitarian assistance shows that the greatest progress hasbeen made in the first of these three areas.
There is now more than sufficient evidence of the existence of the right of victims of armed conflict to humanitarian assistance, derived fromthe right to life and from both international humanitarian and human rightslaw. Nevertheless, something should be done in order to guarantee the rightto request aid from third parties in internal armed conflicts.
Although there is no doubt about the meaning of the principles of humanity, impartiality and neutrality, many complications arise inapplying them to the implementation of humanitarian assistance. In anyevent, the problem lies not in inadequate legal definitions, but in thecontext in which humanitarian assistance is implemented and in the interestsinvolved.
The main stumbling block of humanitarian assistance is the lack of effective mechanisms of implementation and enforcement, so that it oftenremains a mere desideratum rather than a real exercisable right.
The absence of specific, effective implementation mechanisms has prompted efforts to establish alternative means of ensuring that humani-tarian aid reaches the people it is intended for. These include consideringthe failure to provide humanitarian assistance as a threat to internationalpeace and security, with all the ensuing consequences, and the unilateralimposition of humanitarian aid on a State when it unlawfully refuses toaccept it. Humanitarian assistance then becomes humanitarian interven-tion, and it is submitted that while such intervention may have a clearmoral justification, it has no legal basis in international law as it nowstands.
We would like to finish this article with an appropriate quote from the “We enter the new millennium with an international code of humanrights that is one of the great accomplishments of the twentieth century.
Alas, human rights are flouted wantonly across the globe. Genocide, masskillings, arbitrary and summary executions, torture, disappearances, 04_article Stoffels 18.10.2004 8:58 Page 545 IRRC September 2004
enslavement, discrimination, widespread debilitating poverty and thepersecution of minorities still have to be stamped out. Institutions andmechanisms have been established at the United Nations to eradicatethese blights on our civilization.”49 Hopefully, the 21st century will see this eradication for the benefit of 49 Annual Report of the Secretary-General on the Work of the Organization, 31 August 1999, UN 04_article Stoffels 18.10.2004 8:58 Page 546 Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps Résumé
Le régime juridique de l’assistance humanitaire: acquis et lacunes
Dans cet article, l’auteur analyse le contenu et les limites du droit à l’assis- tance humanitaire dans les conflits armés internationaux et internes. Son postulatest que l’assistance humanitaire est un droit qui découle directement du droit à lavie et qui, partant, est protégé tant par le droit international des droits de l’hommeque par le droit international humanitaire. Bien que la mise en œuvre de ce droit ne soit pas suffisamment garantie par les mécanismes dont sont dotées les branches du droit international susmention-nées, il convient de mettre en relief le travail considérable mené par le Conseil desécurité des Nations Unies. Ces dernières années, en effet, cet organe a relié en dif-férentes occasions les violations graves, massives et systématiques de ce droit àl’existence d’une menace pour la paix et la sécurité internationales. Par ailleurs, il a fallu étudier de quelle façon le refus illicite que les parties en conflit opposent à l’entrée, au transit et à la distribution des secours crée une sériede problèmes pratiques et juridiques. Des solutions possibles sont proposées. Enfin, l’auteur souligne que seule l’assistance qui réunit les critères d’huma- nité, d’impartialité et de neutralité est protégée par le droit international.
Néanmoins, des difficultés surgissent à l’heure non seulement de définir mais ausside remplir ces critères.

Source: http://www.961.ch/eng/assets/files/other/irrc_855_stoffels.pdf