34 Right to Humanitarian Assistance- III

Dr. Aneesh V. Pillai

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Introduction:

In recent decades, the armed conflicts and natural disasters have caused severe sufferings and deprivations of basic necessities to millions of people. There is a long history of international efforts to save lives and alleviate the sufferings of those not taking part in an armed conflict and who are deprived of the basic necessities of life as a result of the hostilities. Hence, the view that civilian populations and non-combatant members of armed forces should be protected during armed conflict is not new. For example the ‘Articles of War’ decreed in Sweden by king Gustavus II Adolphus in 1621, contained provisions about the status of non-combatants under which looting and the burning of property were prohibited without express permission. The “Lieber Code”, adopted by the Union side in the American Civil War in 1863 laid down an express obligation to protect civilians. Based on Henry Dunant’s ideas, the first universal rules of law to protect the civilians and no-combatants were defined in the first Geneva Convention of 1864. The Convention has subsequently been revised several times, and the relevant documents in force today are collectively known as international humanitarian law, which includes the four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the one Additional Protocol of 2005.

Further, the situation of the civilian population in armed conflicts like Nigeria 1966 – 1970, Iraq after the second Gulf War 1991 and under the occupation in 2003, Somalia at the beginningof the 1990s, former Yugoslavia in the 1990s (e.g. the situation in the cities of Vukovar, Sarajevo and Srebrenica), Sudan in the 1990s, Afghanistan before and since 2001, Lebanon 2006, and Gaza/Gaza City 2009 contributed to a broadening of the concept and to the development of a legal regime for humanitarian assistance in armed conflict, under treaty and under customary law. Thus it can be seen that, international humanitarian law establishes a framework which guarantees right to humanitarian assistance and imposes various obligations for the realization of such right during international armed conflict.

Learning Outcomes

  • To understand the concept of IHL and Right to Humanitarian Assistance.
  • To understand the concept of Humanitarian Assistance in Non International Armed Conflict.
  • To understand the concept of Humanitarian Assistance during Natural Disasters.
  • To understand the concept of Humanitarian Assistance in International Armed Conflict.

IHL and Right to Humanitarian Assistance:

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. It is also known as the law of war or the law of armed conflict. International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs. 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 combatants and the duty to ensure respect, protection and humane treatment for people not or no longer participating in the hostilities. The broad concept of protection established under this principle clearly encompasses assistance for people in need and, as such, is established in conventions and protocols. IHL applicable to international armed conflicts contains relatively detailed treaty provisions on the facilitation of humanitarian relief. It is based on a balance of the principle of humanity and military necessity. It emphasizes the right of civilians and other protected persons to be treated humanely, and to receive medical care and humanitarian assistance essential to their survival.

The Geneva Conventions and Additional Protocols do not define ‘humanitarian assistance’ but provide a basic description of the rights and responsibilities of parties to the conflict and the potential role for humanitarian agencies. The provision of relief to civilian populations falls within the scope of the Fourth Geneva Convention, the two Additional Protocols and common Article 3. This includes the supply of foodstuffs, medical supplies and clothing (GCIV, Art 59), distribution of materials for educational, recreational or religious purposes (GCIV, Art 108) and measures to protect civilians and assist them to ‘recover from the immediate effects, of hostilities or disasters and also to provide conditions necessary for their survival’ (API, Art 61); etc. These legal regimes for humanitarian assistance in IHL distinguish between humanitarian assistance provided within occupied territories and in other territories. It further distinguishes between humanitarian assistance in international armed conflict and non-international armed conflicts.

Humanitarian Assistance in International Armed Conflict

Under IHL, the parties to the conflict have the duty and primary responsibility to provide humanitarian assistance to civilians and civilian populations under their control. There are, however, also provisions that allow for the possibility (with certain conditions) of humanitarian organizations undertaking relief actions. The most important provisions are:

Article 55 of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War prescribes that “to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory are inadequate. The ICRC commentary on the article 55 states that, the occupying power incurs “a definite obligation to maintain at a reasonable level the material conditions under which the population of the occupied territory lives.”

The Article 69(1) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) states that, ‘in addition to the duties specified in Article 55of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship’. Thus Article 69 broadens the list of objects specified in article 55 by itemizing also clothing, bedding, means of shelter, and any other supplies essential to the survival of the civilian population.

Article 59 of Geneva Convention (IV) sets forth that “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing”. According to ICRC commentary on article 59, the obligation imposed on the occupying power to enable such relief consignments to reach the civilian population ‘is unconditional’. It is to be noted here that a violation of this obligation does not amount to a ‘grave breach’ of the convention. However, ‘willfully impeding relief supplies as provided for under the Geneva Conventions’ is considered as a war crime as per article 8(b)(xxv) of the 1998 Rome Statute of the International Criminal Court.

Further, the GC IV states that, ‘the Occupying Power has the duty not to divert relief consignments from the purpose for which they are intended, except in cases of urgent necessity, in the interests of the population of the occupied territory and with the consent of the Protecting Power’. Every distribution of the relief consignments shall be carried out with the co-operation and under the supervision of the Protecting Power. This duty may also be delegated, by agreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International Committee of the Red Cross or to any other impartial humanitarian body. Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties unless these are necessary in the interests of the economy of the territory. It is the duty of Occupying Power to facilitate the rapid distribution of these consignments. All Contracting Parties shall endeavor to permit the transit and transport, free of charge, of such relief consignments on their way to occupied territories.

The Convention also imposes obligations to States other than the occupying power. They are obliged to permit the free passage of relief goods and to guarantee their protection. Relief consignments are to be respected and protected in case they are exposed to danger through military operations. The obligation to respect and to protect is compensated by control rights in terms of verification and supervision, in particular a right to check that the assistance is to be used for the intended population and not for the benefit of the occupying power. They have to take measures for the transit and transport of such relief consignments on their way to occupied territories, free of charge.

The Article 108 states that, ‘Internees shall be allowed to receive, by post or by any other means, individual parcels or collective shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and objects of a devotional, educational or recreational character which may meet their needs. Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the present Convention. Should military necessity require the quantity of such shipments to be limited, due notice thereof shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any other organization giving assistance to the internees and responsible for the forwarding of such shipments’. Such relief shipments for internees should be exempted from import, customs and other dues11. These obligations were supplemented by certain provisions of Additional Protocol. It is one of the important duties of the occupied territory that the humanitarian assistance must be humanitarian and provided without adverse distinction. Distinctions are unlawful when based on criteria other than medical or humanitarian.

It can be seen that various provisions in the Conventions are expressed in terms of the duties of parties to the conflict to provide or allow for relief. However, Article 30 of the Fourth Geneva Conventions grants protected persons ‘every facility for making application to [international and national relief organizations that might assist them’. Likewise, Article 62 also provides that ‘protected persons in occupied territories shall be permitted to receive the individual relief consignments sent to them’, subject to security issues. Hence there is debate about whether these provisions can translate into a right to (appeal for) humanitarian assistance. It can be see that such a claim is supportedunder customary international law. There is practice that indicates not only those parties to the conflict are obligated to accept humanitarian assistance but that also points to recognition that civilians in needs are entitled to receive humanitarian assistance necessary to their survival15.It is to be noted here that an analysis of various declarations and resolutions of international bodies; the reports issued by human rights monitoring bodies and States, shows that there is a general acceptance that these obligations apply to all States and to all types of conflict.

Humanitarian Assistance in Non International Armed Conflict

The treaty law regime of humanitarian assistance in non-international armed conflicts is weaker than the framework for international conflicts. The legal regime comprises of two sources first,the common article 3 of the four Geneva Conventions of 1949 and second is 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

According to Common Article 3 Geneva Conventions “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict”. The provision identifies not only the governmental, but also the non-state party to the conflict as a potential receiver of such offer and thus of humanitarian assistance. Such an offer or provision of assistance to a non-governmental party to the armed conflict is not to be considered an interference with the domestic affairs of a State. However Common Article 3 GC does not specifically provide for any further rights and duties related neither to humanitarian assistance neither with regard to the operation nor to personnel involved.

The Protocol Additional II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) enlarges the scope of humanitarian assistance in cases of no-international armed conflict. Article 18 of the Protocol expressly states that, ‘If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken’. Such assistance has to be humanitarian, impartial and it should be conducted without any adverse distinction. The principles of impartiality and non-discrimination are cardinal while providing humanitarian assistance in situations of non-international armed conflicts. The Protocol II also prohibits both starvations of civilians as a method of combat and attacking objects indispensable to the survival of the civilian population.

Humanitarian Assistance during Natural Disasters

Like humanitarian assistance in armed conflict, assistance during natural disasters is also very important. Natural disasters include epidemics, famines, earthquakes, floods, tornadoes, typhoons, cyclones, avalanches, hurricanes, volcanic eruptions, drought, and fire. Assistance in such circumstances is likely to consist of food, clothing, medicines, temporary shelters and hospital equipment. Though assistance during natural disasters is very important, none of the binding international human rights law does not explicitly address the right to protection and relief from disasters, but this is clearly implied. For example, Article 25 of the Universal Declaration of Human Rights states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, or old age or other lack of livelihood in circumstances beyond his control.”

It is to be noted here that there are various soft law documents at international level dealing with the subject of right to humanitarian assistance during natural disasters. For example, the 21st International Conference of the Red Cross and Red Crescent’s Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations of 1969, which asserts that “the fundamental concern of mankind and of the international community in disaster situations is the protection and welfare of the individual and the safeguard of basic human rights.” The Doha Declaration of the United Nations Decade of International Law Conference of 1994; the International Institute of Humanitarian Law’s Guiding Principles on the Right to Humanitarian Assistance of 1992 (art. 1), the Guiding Principles on Internal Displacement of 1998 (principle 3), and the Mohonk Criteria for Humanitarian Assistance in Complex Emergencies of 1995 also deals with right to humanitarian assistance during natural disasters. It is to be noted here that in 2007, the International Law Commission began work the on topic “Draft Articles on the Protection of Persons in the Event of Disasters” and appointed Eduardo Valencia-Ospina as Special Rapporteur.The draft articles aim to “facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with full respect for their rights” (article 2).

Conclusion

The international humanitarian law imposes primary obligation to the State concerned to render assistance and satisfy the right to humanitarian assistance of individuals affected by armed conflicts. However, if the State concerned is unable to provide relief or unwilling to provide humanitarian assistance to the victims, the victims have a right to receive humanitarian aid from external sources19. The world community has the means at its disposal both to prevent and alleviate the sufferings of individuals due to armed conflicts. Therefore rather than seeing them to suffer and die, the States should take necessary steps to prevent and mitigate those situations. In order to increase public awareness about the right to humanitarian assistance and related activities, the UN General Assembly declared 19th August as the World Humanitarian Day 20.

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Reference

  1. See, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, available at https://www.icrc.org/eng/assets/files/other/irrc-867-ihl-challenges.pdf.
  2. Heike Spieker, “The Right to Give and Receive Humanitarian Assistance”, H.J. Heintze and A. Zwitter (eds.) International Law and Humanitarian Assistance, Springer-Verlag Berlin Heidelberg, 2011.
  3. See for more, https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf.
  4. Ruth Abril Stoffels, “Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps”, RICR September IRRC September 2004 Vol. 86 No 855, 515