The volume of humanitarian assistance has increased significantly since the end of the Cold War, alongside the number of actors providing such assistance. Humanitarian actors are expected to base their assistance on certain fundamental humanitarian principles. They can also seek guidance for their work in various sources of international humanitarian law.
What are humanitarian principles?
In the broadest sense, humanitarian principles are rooted in international humanitarian law. In a more narrow sense, they are the principles devised to guide the work of humanitarian actors (Mackintosh, 2000). These principles are widely recognised as: humanity, neutrality, impartiality and independence.
Humanity: Human suffering must be addressed whenever it is found. The purpose of humanitarian action is to protect life and health and ensure respect for human beings.
Neutrality: Humanitarian actors must not take sides in hostilities or engage in controversies of a political, racial, religious or ideological nature.
Impartiality: Humanitarian action must be carried out on the basis of need alone, giving priority to the most urgent cases of distress and making no distinctions on the basis of nationality, race, gender, religious belief, class or political opinions.
Operational Independence: Humanitarian action must be autonomous from the political, economic, military or other objectives that any actors may hold with regard to areas where humanitarian action is being implemented.
(The UN Office for the Coordination of Humanitarian Affairs (OCHA))
How are humanitarian principles treated in IHL?
The right to humane treatment is at the core of IHL. It is a basic obligation codified in various provisions of the Geneva Conventions and its Additional Protocols, in particular Article 27 of the Fourth Geneva Convention protecting civilians and in common Article 3 governing non-international conflicts. As noted earlier (in the Overview of IHL), it is also considered to be a norm under customary international law
The law of neutrality, which stems from state practice and the Hague Conventions, is defined in international law as ‘the status of a state which is not participating in an armed conflict between other states’ (Bothe, 2008, p. 571). It encompasses the right not to be ‘adversely affected’ and the duty of non-participation. Under the Hague Convention V, humanitarian assistance for the sick of wounded is not considered to be a violation of neutrality even if it benefits only the sick and wounded from one party to the conflict (Art 14).
In more recent times, there have been concerns that diversion of humanitarian assistance and misuse of aid by parties to international and non-international conflicts can undermine the neutrality of assistance, in terms of non-participation in hostilities (direct and indirect). While neutrality is not specifically mentioned in the Geneva Conventions or Additional Protocols, there are provisions that can relate to aspects of neutrality. Article 23 of the Fourth Geneva Convention obliges a party to allow free passage of goods through its territory intended for the civilians of another party to the conflict. However, this is only enforceable if the obligated party has no reason for fearing that these goods may be diverted or that they may result in a military advantage to the enemy. Proper control by the humanitarian organisation transporting the goods is considered essential to ensure that the goods do not indirectly advance one side of the conflict (Mackintosh, 2000).
Impartiality is needs-based provision of assistance, incorporating non-discrimination and the absence of subjective distinctions (e.g. whether an individual is innocent or guilty) (Pictet, 1958 and 1979). As noted in the Overview of IHL, the principle of non-discrimination is a core principle in IHL. Various provisions of the Geneva Conventions and Additional Protocols state the importance of equal treatment of protected persons without distinction and entitlement to fundamental rights without discrimination.
Classification as humanitarian assistance denied due to partiality – The provision of aid to the Contras in Nicaragua
During the 1980s, the United States government provided assistance to the Contras, a militia group that was opposed to the Sandinista government of Nicaragua. The government accused the US of violating international law by intervening in the internal affairs of Nicaragua. One of the defences provided by the US was that it was providing humanitarian assistance. The International Court of Justice affirmed that humanitarian assistance is not contrary to international law, but that the assistance the US provided was not humanitarian by nature. The aim of its assistance was not to prevent and alleviate human suffering. Moreover, it was provided in a discriminatory fashion, only to the Contras and their dependents. As such, it did not satisfy the criteria required to qualify as humanitarian assistance.
(Nicaragua vs. US – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), ICJ Reports 1986)
How is humanitarian assistance treated in IHL: What duties and rights exist?
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).
Since the conventions and protocols are addressed to states, they do not directly confer rights or obligations upon humanitarian agencies. Provisions in the GCs and APs describe situations in which states must allow humanitarian assistance to be delivered to civilians in their power, the forms of assistance that are entitled to protection, and the conditions which states are allowed to impose on their delivery (Mackintosh, 2000). These provisions are relevant and useful to humanitarian agencies as they provide insight and guidance into the conditions that they must meet should they seek to provide assistance. They also provide tools to argue for and to secure humanitarian access and cooperation from states, other parties to the conflict and countries that fall under the transit route for delivery of assistance.
Duty of state parties and role of humanitarian organisations
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 organisations to undertake relief actions. The rules on humanitarian access and assistance can be distinguished by type of conflict:
International armed conflict (situations of occupation): Articles 55 and 56 of GCIV provide that the occupying power has the duty to ensure food, medical supplies, medical and hospital establishments and services, and public health and hygiene to populations in the occupied territory. This duty was extended in AP I to include the duty to ensure bedding, means of shelter and other supplies essential to the survival of the civilian population (Art 69). Article 59 of the GCIV further states 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 […] Such schemes, which may be undertaken either by States or by impartial humanitarian organisations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.
National Red Cross Societies or other relief societies ‘shall be able to pursue their activities’ in accordance with Red Cross principles (an ethical framework for humanitarian action encompassing Humanity, impartiality, neutrality, independence, universality, voluntary service and unity) or under ‘similar conditions’ (respectively), subject to ‘temporary and exceptional measures imposed for urgent reasons of security’ (GCIV, Art 63).
Thus, in situations of occupation, the obligation of occupying authorities to facilitate and cooperate with relief schemes is unconditional. There is a relatively wide space provided to humanitarian organisations, provided that they are impartial and operate in accordance to humanitarian principles. Article 59 of GCIV allows occupying authorities to retain a certain ‘right of control’, however, such as the right to search the relief consignments, to regulate their passage and to ensure that they are directed at the population in need (Beauchamp, 2008).
International armed conflict (outside of occupation): Article 70(1) of API states that if the civilian population under the control of a party to the conflict is not adequately provided with relief supplies, ‘relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken’. This is, however, subject to the agreement of the parties concerned with such actions (see box below).
Additional provisions require that civilians are enabled to receive the necessary assistance. State parties are obligated to allow free and rapid passage of all relief consignments, equipment and personnel, regardless of whether they are being delivered to the civilian population of the enemy (GCIV, Art 23; API, Art 70(2)).
Non-international armed conflict: Provisions on humanitarian assistance are the least developed in this context. Common Article 3 simply provides that ‘an impartial humanitarian body, such as the [ICRC], may offer its services to the Parties to the conflict’.
Article 18(1) of Additional Protocol II adds that domestic relief societies, such as National Red Cross/ Red Crescent Societies, may ‘offer their services’ as may the civilian population itself. International relief is addressed in Article 18(2), which states that where the civilian population ‘is suffering undue hardship owing to a lack of supplies essential for its survival, such as foodstuffs and medical supplies, relief actions […] of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken’. Similar to the international conflicts outside of occupation, this is subject the consent of the state party concerned (see box below). In this context, it entails the state giving consent for assistance to the insurgent side. Although it is difficult to determine the threshold of ‘undue hardship’, ICRC commentary on the Additional Protocols suggests that the ‘usual standard of living of the population concerned’ should be taken into consideration (p. 1479).
The issue of state consent to relief actions (outside of occupation): reliance on international customary law
The combination of statements that relief actions ‘shall be undertaken’ but with the agreement or consent of state parties has resulted in debate over the extent to which parties to both international and non-international armed conflicts are obligated to accept assistance. State practice, however, does not emphasise the requirement of consent. The view is that so long as there is humanitarian need and organisations and relief actions meet the requisites of being humanitarian and impartial in character and without adverse distinction, governments cannot arbitrarily refuse assistance. This is particularly the case in extreme situations, where a lack of supplies would result in starvation. Article 54 of AP I prohibits the starvation of civilians as a method of combat. The ICRC’s study found that it was a norm of customary international law in international and non-international conflicts that governments cannot arbitrarily refuse assistance. Even in cases outside of starvation, the study also found that parties to the conflict are obligated to allow and facilitate humanitarian assistance in any kind of conflict where civilians are in need (subject to their right to exercise control over relief actions). This is based on practice in the field, various UN resolutions and other sources. While this position has been supported by various scholars, there is still debate on the issue. The work of the International Law Commission on customary law in the context of disasters also aims to establish a norm of state responsibility to not arbitrarily refuse assistance – see recent developments in IDRL in the section on The Emergence of IDRL (ICRC 2005b; Pejic, 2011; Mackintosh, 2000).
For discussion on provision of humanitarian assistance to areas outside of government control and negotiating access with non-state parties to a conflict, see IHL and Humanitarian Assistance Involving Non-state Armed Groups.
Right of civilians to receive assistance
While most provisions are expressed in terms of the duties of parties to the conflict to provide or allow for relief, Article 30 of the Fourth Geneva Conventions grants protected persons ‘every facility for making application to [international and national relief organisations] that might assist them’. There is debate about whether these provisions can translate into a right to (appeal for) assistance. In addition, Article 62 provides that ‘protected persons in occupied territories shall be permitted to receive the individual relief consignments sent to them’, subject to security issues.
There is support for such civilian entitlements under customary international law. There is practice that indicates not only that parties to the conflict are obligated to accept humanitarian assistance but that also points to recognition that civilians in need are entitled to receive humanitarian relief necessary to their survival (ICRC, 2005b; Spieker, 2012).
How is humanitarian assistance regulated under IHL?
IHL offers some specific rules on access and delivery of humanitarian assistance in international armed conflicts. For example, it outlines the obligations of domestic authorities concerning the transfer of relief consignments; restricts the possibility of their diversion; and regulates the participation of humanitarian personnel. The aim is to reduce ‘red tape’ as much as possible and allow for the speedy delivery of relief to protected persons.
- Parties to an international armed conflict and other transit states are required to allow free passage to medical supplies, items for religious worship, and religious goods intended for civilians of other parties to the conflict, even if from the enemy side. They must also allow ‘consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases’. This is subject to the condition that the party is satisfied that the consignments are unlikely to be diverted, particularly for military purposes (GCIV, Art 23).
- Such consignments must be forwarded as quickly as possible, subject to ‘technical arrangements’ under the control of the power permitting free passage (GCIV, Art 23). The ICRC Commentary to the Fourth Geneva Convention interprets ‘technical arrangements’ as allowing the state party to check the consignments and to arrange for their delivery at particular times and on particular routes.
- Relief consignments must 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’. In addition, the occupying power must facilitate their free passage and rapid distribution (GCIV, Art 61). These duties apply not only to the occupying power, but also to states of transit.
- Humanitarian organisations must be granted all facilities possible such that they can carry out their humanitarian functions (GCIV, Art 30).
There are few treaty rules that address conditions of access and delivery of humanitarian assistance in non-international armed conflicts. The ICRC’s customary law study asserts, however, that there is enough practice to justify extending the requirement that the party in control must facilitate free passage and rapid distribution of relief in situations of occupation to other situations of international and internal conflict. It also found that the freedom of movement of authorised relief personnel essential to fulfil their humanitarian functions is also required under customary international law (ICRC, 2005b). It is still debatable, however, whether there is enough practice to find a ‘right to access’ under customary law (Spieker, 2011).
The treatment of vulnerable groups
Another important aspect of the regulation of protection and humanitarian assistance is addressing the special needs of vulnerable groups. This entails both non-discrimination and positive measures to ensure that they are captured in relief actions. Parties to the conflict are specifically obligated to:
- Grant children, expectant mothers, maternity cases and nursing mothers special treatment and protection and to give them priority in the distribution of relief consignments (API, Art 70(1)).
- Provide for free passage of ‘essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases’ (GCIV, Art 23).
- Provide children with the care and aid needed, which is a fundamental guarantee of human treatment (APII, Art 4(3)).
- Ensure that children under fifteen who are orphaned or separated from their families are provided with ‘maintenance’, access to education and the ability to exercise religion (GCIV, Art 24)
Protection of humanitarian workers
Civilian personnel involved in humanitarian assistance are subject to the general protections applicable to civilians of states not party to the conflict. They are also granted specific protections. Various provisions in the Geneva Conventions and Additional Protocols prohibit attacks upon medical units, hospitals and medical personnel. Additional Protocol I extends specific protection to all relief personnel, obligating states to ensure the respect and protection of relief workers (Art 71(2)). This same provision is not contained in Additional Protocol II. The ICRC’s customary law study found, however, that such requirements are part of international customary law and thus also apply in non-international armed conflicts (ICRC, 2005b). This conclusion is reinforced by the protections afforded to humanitarian personnel and objects under the Convention on the Safety of United Nations and Associated Personnel and the inclusion of deliberate attacks against ‘personnel, installations, material, units or vehicles involved in a humanitarian assistance’ as a war crime in international and internal armed conflicts in the Rome Statute of the International Criminal Court (Art 8(2)).
Attacks against humanitarian personnel in Darfur – violations of various aspects of IHL
The conflict in Darfur that began in 2003 (and concluded with the 2011 Darfur Peace Agreement) was considered to be primarily a civil war. As such the applicable IHL rules comprised of common Article 3 of the Geneva Conventions, AP II, and customary law. During the conflict, there were frequent reports of military attacks against humanitarian personnel and vehicles from all parties to the conflict, which hindered the delivery of humanitarian assistance. These acts were considered by reporting agencies, including the UN Security Monitoring Panel on Sudan, to be likely breaches of IHL for the following reasons: (1.) such military attacks are contrary to the prohibition of targeting civilians and civilian objects; (2.) attacking humanitarian relief personnel and objects used for humanitarian relief operations is specifically prohibited; (3.) starvation of the civilian population (by hindering relief operations), if conducted intentionally as a method of warfare, is also prohibited; and (4.) even if there is no deliberate attempt to cause starvation (and/or no risk of starvation), such attacks could still be a violation of IHL if they are contrary to the requirements of proportionality and adoption of precautionary measures (Yihdego, 2009).
What is the relevance of human rights law to humanitarian assistance?
With a few exceptions, the key human rights instruments do not explicitly refer to international humanitarian assistance. As such, it can be argued that there is no general right to receive such assistance under IHRL. Others emphasise that international and regional human rights instruments set out many related rights, such as the rights to life, food, housing, clothing, health livelihood, and an adequate standard of living. The International Covenant on Economic, Social and Cultural Rights is particularly relevant. State parties to this treaty are obligated to use the maximum of their available resources – including international assistance – to progressively achieve the full realisation of the rights recognised in the Covenant. While the right to life could indicate a minimal right to assistance, the various economic and social rights guaranteed in international human rights law can create the legal space for individuals to claim the right to humanitarian assistance, with corresponding obligations on the part of states to provide such assistance. However, this argument remains contested (Fisher, 2007).