33 Right to Humanitarian Assistance- II

Dr. Aneesh V. Pillai

Learning Outcomes

• To understand the role of Right to Humanitarian Assistance.
• To understand the role of Governmental and Non-Governmental Humanitarian Organizations.
• To understand the role of the Office for the Coordination of Humanitarian Affairs (OCHA).

Introduction

For the past few decades the humanitarian assistance provided in situations of war and disaster by various governments, international organizations such as UN and nongovernmental organizations (NGOs) such as ICRC in situations of armed conflict and natural disasters has saved hundreds of thousands of lives and helped to mitigate the sufferings. The assistance such as provisions for food and medical supplies to refugees, displaced persons, and those near the battlefields in Somalia, Rwanda, Zaire, Mozambique, Angola, Liberia, Sudan, and other places are some of the glaring examples in these decades. Various NGO’s are also in the forefront of providing humanitarian assistance to the needy people. The various organizations working in this direction can called as humanitarian organizations. The various humanitarian activities by the world community led to the establishment of a claim, i.e. right to humanitarian assistance. Various international organizations have framed different principles and rules for guiding and facilitating the activities of humanitarian assistance. Observance of these guidelines and principles are necessary for the effective enjoyment and realization of right to humanitarian assistance.

Governmental and Non-Governmental Humanitarian Organizations 

Humanitarian organizations help to ensure that there is swift, efficient humanitarian assistance available when sudden natural disasters strike or wars occur or in connection with long-term conflicts. Some of the important humanitarian organizations are:

Office for the Coordination of Humanitarian Affairs (OCHA)

OCHA is the part of the United Nations Secretariat responsible for bringing together humanitarian actors to ensure a coherent response to emergencies. OCHA also ensures there is a framework within which each actor can contribute to the overall response effort. OCHA’s mission is to, mobilize and coordinate effective and principled humanitarian action in partnership with national and international actors in order to alleviate human suffering in disasters and emergencies; Advocate the rights of people in need; Promote preparedness and prevention; and Facilitate sustainable solutions.From over 30 offices around the world, some 1,900 specialized and dedicated OCHA staff work to ensure that effective assistance reaches millions of humanitarian beneficiaries in four continents..

Office of the United Nations High Commissioner for Refugees (UNHCR)

The UNHCR was established by United Nations General Assembly on December 14, 1950 with an explicit obligation to provide humanitarian assistance to refugees, i.e. persons compelled to flee from their home countries due to man-made or natural disasters. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country. It also has a mandate to help stateless people. Since 1950, the agency has helped tens of millions of people restart their lives. Today, a staff of more than 9,300 people in 123 countries continues to help and protect millions of refugees, returnees, internally displaced and stateless people.

The International Red Cross and Red Crescent Movement

The International Red Cross and Red Crescent Movement are dedicated to preventing and alleviating human suffering in warfare and in emergencies such as epidemics, floods and earthquakes.It is not a single organization. It is composed of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies and the 189 individual National Societies. Each has its own legal identity and role, but they are all united by seven Fundamental Principles. These principles are humanity, impartiality, neutrality, independence, voluntary service, unity and universality. Each component of the Movement is committed to respect and uphold them.

The ICRC’s exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. It directs and coordinates the Movement’s international relief activities during armed conflicts. Established in 1863, it is at the origin of the Movement. The Federation inspires, facilitates and promotes all humanitarian activities carried out by its member National Societies on behalf of the most vulnerable people. It directs and coordinates its members’ actions to assist the victims of natural and technological disasters, refugees and those affected by health emergencies. It was founded in 1919.

National Societies act as auxiliaries to their national authorities in the humanitarian field. They provide a range of services including disaster relief, and health and social programmes. In wartime they may assist the civilian population and support the medical services of the armed forces.

MédecinsSansFrontières (MSF)

MSF is an independent, humanitarian relief agency that provides medical aid around the world. It operates where there is no medical infrastructure or where existing infrastructures cannot withstand the pressures to which they are subjected. In most cases, relief programs become rehabilitation projects that may run for several years after the most urgent needs have been met. For more than 40 years, MSF has been providing medical assistance to people affected by armed conflicts, natural disasters, disease epidemics, malnutrition crises and other emergencies. By providing medical humanitarian assistance, MSF act as witnesses and may speak out in public about the suffering of the people we assist. By bringing public attention to a crisis, MSFseeks to alleviate human suffering and to restore dignity to individual human beings, regardless of race, identity, religion or political affiliation.

The organizations such as United Nations Children’s Fund; United Nations Relief and Works Agency for Palestine Refugees in the Near East; United Nations Population Fund; United Nations International Strategy for Disaster Reduction; International Organization for Migration; Global Forum for Disaster Reduction; United Nations Central Emergency Response Fund; World Food Programme; and major NGOs like CARE; Save the Children; Catholic Relief Services; World Vision; Oxfam; and many less well known organizations were also working with a view to mitigate the sufferings of individuals by providing the necessary humanitarian assistance to them.

Rules and Guidelines Established by Various Instruments

There are various international instruments which provide rules and guidelines to facilitate the humanitarian assistance activities all over the world. Some of the important instruments are the guidelines are as follows:

General Assembly Resolution No. A/RES/46/182 (1991)

According to this Resolution, humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality. The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. Humanitarian assistance should be provided only with the consent and request of the affected country. Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Therefore, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.

Resolution calls for an international cooperation to address emergency situations should be provided in accordance with international law and national laws. States whose populations are in need of humanitarian assistance are called upon to facilitate the work of various organizations in implementing humanitarian assistance, in particular the supply of food, medicines, shelter and health care, for which access to victims is essential. In order to ensure a smooth transition from relief to rehabilitation and development, emergency assistance should be provided in ways that will be supportive of recovery and long-term development. Thus, emergency measures should be seen as a step towards long-term development.

The Resolution further states that, economic growth and sustainable development are essential for prevention of and preparedness against natural disasters and other emergencies. Hence, humanitarian assistance should therefore be accompanied by a renewal of commitment to economic growth and sustainable development of developing countries. In this context, adequate resources must be made available to address their development problems. Further it states that, contributions for humanitarian assistance should be provided in a way which is not to the detriment of resources made available for international cooperation for development.

Guiding Principles on the Right to Humanitarian Assistance by Institute of Humanitarian Law

This instrument provides various principles for the effective realisation of right to humanitarian assistance. It states that, ‘every human being has the right to humanitarian assistance in order to ensure respect for the human rights to life, health, protection against cruel and degrading treatment and other human rights which are essential to survival, well-being and protection in public emergencies’. Humanitarian assistance may consist of any material indispensable to the survival of victims, such as foodstuffs, water, medication, medical supplies and equipment, minimum shelter, clothing; of services, such as medical services, tracing services, religious and spiritual assistance, as well as civil defence, in conformity with the tasks defined in international humanitarian law. The right to humanitarian assistance implies the right to request and to receive such assistance, as well as to participate in its practical implementation. Persons affected by an emergency may address themselves to competent national or international organisations and other potential donors to request humanitarian assistance. They shall not be persecuted or punished for making such a request. According to this instrument, the right to humanitarian assistance may be invoked: (a)) when essential humanitarian needs of human beings in an emergency are not being met, so that the abandonment of victims without assistance would constitute a treat to human life or a grave offence to human dignity; (b)) when all local possibilities and domestic procedures have been exhausted within a reasonable time, and vital needs are not satisfied or are not fully satisfied, so that there is no other possibility to ensure the prompt provision of supplies and services essential for the persons affected.

It further states that, the primary responsibility to protect and assist the victims of emergencies is that of the authorities of the territory in which the emergency causing urgent humanitarian needs occurs. National authorities, national and international organisations, whose statutory mandates provide for the possibility of rendering humanitarian assistance, such as the ICRC, UNHCR, other organisations of the UN system, and professional humanitarian organisations, have the right to offer such assistance when the conditions laid down in the present Principles are fulfilled. This offer should not be regarded as an unfriendly act or an interference in a State’s internal affairs. The authorities of the States concerned, in the exercise of their sovereign rights, should extend their co-operation concerning the offer of humanitarian assistance to their populations.

According to this instrument, for the implementation of the right to humanitarian assistance it is essential to ensure the access of victims to potential donors, and access of qualified national and international organisations, states or other donors to the victims, when their offer of humanitarian assistance is accepted. In the case of a refusal of the offer, or of access to the victims when humanitarian assistance action is agreed upon, the states and organisations concerned may undertake all necessary steps to ensure such access, in conformity with the international humanitarian law and human rights instruments in force.. The competent United Nations organs and regional organisations may undertake necessary measures, including coercion, in accordance with their respective mandates, in case of severe, prolonged and mass suffering of populations, which could be alleviated by humanitarian assistance. These measures may be resorted to when an offer has been refused without justification, or when the provision of humanitarian assistance encounters serious difficulties. In the event of measures of coercion being resorted to by competent UN organs, for reasons other than those of a humanitarian nature, the right to humanitarian assistance should be respected, in particular by exempting from such measures materials for the essential humanitarian needs of the populations.

In the case of measures of coercion undertaken by the competent UN organs and/or regional organisations, when humanitarian assistance is provided for, these organs should ensure that such assistance is not diverted for political, military, and/or other similar purposes, and that the principles of humanity, neutrality and impartiality will be fully respected and implemented.

It further states that, the status and protection of personnel engaged in humanitarian assistance operations shall be regulated on the basis of the applicable law. This is the case, in particular, as regards the personnel of the United Nations or of organisations of the UN system when engaged in humanitarian assistance activities, the personnel of ICRC, the personnel of professional organisations with humanitarian objectives, and the personnel of other national and international organisations engaged in humanitarian assistance activities. The status, rights and obligations of all these categories of personnel should be regulated by the respective national and international rules. It also states that, in order to improve efficiency and to avoid duplication and waste, the efforts of the various actors in any humanitarian assistance operations should be co-ordinated by those who bear the main responsibility for such operations.

Mohonk Criteria, 1993

The Mohonk Criteria is a set of principles formulated by a Task Force on Ethical and Legal Issues in Humanitarian Assistance appointed by the Programme on Humanitarian Assistance at the World Conference on Religion and Peace. The criteria address critical issues in providing humanitarian assistance during complex emergencies. It starts with the premise that a mandate for providing humanitarian assistance to those in need emerges from notions of fundamental human rights. According to this instrument, ‘everyone has the right to request and receive humanitarian aid necessary to sustain life and dignity from competent authorities or local, national or international governmental and non-governmental organizations; and (2) humanitarian agencies have the right to offer and deliver that humanitarian aid where needed, consistent with universal principles embodied in international humanitarian and human rights law.

It states that certain humanitarian principles must govern all humanitarian assistance, including:

Humanity: Human suffering should be addressed wherever it is found. The dignity and rights of all victims must be respected and protected.

Impartiality: Humanitarian assistance should be provided without discriminating as to ethnic origin, gender, nationality, political opinions, race or religion. Relief of the suffering of individuals must be guided solely by their needs, and priority must be given to the most urgent cases of distress.

Neutrality: Humanitarian assistance should be provided without engaging in hostilities or taking sides in controversies of a political, religious or ideological nature.

Independence: The independence of action by humanitarian agencies should not be infringed on or unduly influenced by political, military or other interests.

Empowerment: Humanitarian assistance should strive to revitalize local institutions, enabling them to provide for the needs of the affected community. Humanitarian assistance should provide a solid first step on the continuum of emergency relief, rehabilitation, reconstruction and development.

Finally, these criteria recognize that humanitarian assistance must be provided within a continuum of responses that respect the culture and dignity of aid recipients and involves them fully. Humanitarian assistance should stress self-reliance, address root causes to the extent possible, and proceed from emergency relief to rehabilitation, reconstruction, repatriation or resettlement and sustainable development. It further states that, humanitarian assistance should protect and care for the whole person including his or her human rights and should seek to reach the most vulnerable: children, the elderly, persons with disabilities, the poor and women.

Resolution of the Institute of International Law, 2003

According to this resolution, the victims of disaster are entitled to request and receive humanitarian assistance. Assistance may be sought on behalf of the victims, by the members of the group, by local and regional authorities, the government of the affected State, and national or international organizations. Humanitarian assistance shall be offered and, if accepted, distributed without any discrimination on prohibited grounds, while taking into account the needs of the most vulnerable groups. It specifically states that leaving the victims of disaster without humanitarian assistance constitutes a threat to human life and an offence to human dignity and therefore a violation of fundamental human rights.

Further, it states that the affected State has the duty to take care of the victims of disaster in its territory and has therefore the primary responsibility in the organization, provision and distribution of humanitarian assistance. As a result, it has the duty to take the necessary measures to prevent the misappropriation of humanitarian assistance and other abuses. Any other authority exercising jurisdiction or de facto control over the victims of a disaster (for example in case of disintegration of the governmental authority) has the duty to provide them with the necessary humanitarian assistance, and also has all the other duties and rights of the affected State provided for in this Resolution. Whenever the affected State is unable to provide sufficient humanitarian assistance to the victims placed under its jurisdiction or de facto control, it shall seek assistance from competent international organizations and/or from third States.

It also provides that, states and organizations have the right to offer humanitarian assistance to the affected State. Such an offer shall not be considered unlawful interference in the internal affairs of the affected State, to the extent that it has an exclusively humanitarian character. The States and organizations have the right to provide humanitarian assistance to victims in the affected States, subject to the consent of these States.

According to this resolution, any intentionally directing attacks against personnel, installations, goods or vehicles involved in a humanitarian assistance action is serious breach of fundamental principles of international law. If such serious breaches are committed, the accused persons shall be brought to trial before a competent domestic or international court or tribunal.

Summary:

Now from the reading of the above, lets summarize the Fundamental Principles of Humanitarian Assistance:

An analysis of above mentioned instruments and various other instruments shows that while providing humanitarian assistance certain fundamental principles should be considered. They are:

Humanity: The principle of humanity dictates that such aid should consist of goods and services essential to the survival of the population, that it should be provided to the civilian population deprived of the basic necessities of life as a result of conflict, and that the purpose of the aid should be to alleviate human suffering and protect human life, health and dignity.

Impartiality: The principle of impartiality requires that humanitarian aid must be provided in a non-discriminatory manner and must be proportionate to the needs of the population. Non-discrimination implies that no distinction should be made between the beneficiaries of aid for the sole reason of belonging to a particular group, except on the grounds of humanitarian necessity.

Neutrality: The requirement that humanitarian assistance must be neutral stems from its humanitarian nature and the preferential treatment provided under law. First and foremost, the principle of neutrality requires that a distinction must be made between combatants and civilians. Only civilians are entitled to receive humanitarian assistance. It is therefore vital that humanitarian organizations and personnel do their utmost to distinguish between the two.

Reference

1. Guiding Principles on the Right to Humanitarian Assistance”, available at www.iihl.org/iihl/Album/ GUIDING%20PRINCIPLES.doc.
2. http://www.tradecommissioner.gc.ca/eng/development-humanitarian-aid-markets/organizations-other.jsp.
3. Official Website of MSF, http://www.msf.ca/en/who-we-are.
4. Official Website of CCHA, http://www.unocha.org/about-us/who-we-are.
5. Ruth Abril Stoffels, “Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps”, RICR September, 2004 Vol. 86 No 855.