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Assistance to the civilian population: the development and present state of international humanitarian law

Published online by Cambridge University Press:  13 January 2010

Denise Plattner
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Extract

Bearing in mind the plethora of rules applicable in time of war, jurists define international law rather elaborately as follows:

“International humanitarian law applicable in armed conflict means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict”.

Type
Humanitarian Assistance
Information
International Review of the Red Cross (1961 - 1997) , Volume 32 , Issue 288 , June 1992 , pp. 249 - 263
Copyright
Copyright © International Committee of the Red Cross 1992

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Footnotes

*

This article is based on a paper presented by the author at a seminar entitled “International humanitarian law today: peace and war”, organized in Paris on 16 and 17 April 1992 by the Political, Economic and Social Philosophy Department of the Centre National de la Recherche Scientifique, University of Paris (Nanterre).

References

1 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno, eds., International Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva, 1987, p. xxvii.Google Scholar

2 As at 15 May 1992.

3 See on this subject Article 5, paragraph 2(g), of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross in Geneva in October 1986. The text of these Statutes was published in the International Review of the Red Cross, No. 256, 01–02 1987, p. 25 ff.Google Scholar

4 See Article 126 of the Third Geneva Convention and Article 143 of the Fourth Geneva Convention, which relate to supervision of the provisions made for the protection of prisoners of war and of civilian persons respectively. Article 5, paragraph 2(c), of the Statutes of the International Red Cross and Red Crescent Movement defines in general terms the various duties involved in supervising the application of international humanitarian law, when it states that “the role of the International Committee is to work for the faithful application of international humanitarian law applicable in armed conflicts” (see Note 3 above).

5 The ICRC's right of initiative is recognized, as regards international armed conflicts, in Article 9 of the First, Second and Third Geneva Conventions, and in the second sentence of Article 81, paragraph 1, of Additional Protocol I; and as regards non-international armed conflicts in the second paragraph of Article 3 common to the four Geneva Conventions. Article 5, paragraph 2(d), of the Statutes of the International Red Cross and Red Crescent Movement sanctions it as regards internal armed conflicts and strife (see Note 3 above).

6 Declaration of St. Petersburg of 1868 to the Effect of Prohibiting the Use of Certain Projectiles in Wartime. This text appears in The Laws of Armed Conflict, A Collection of Conventions, Resolutions and Other Documents, Schindler, Dietrich and Toman, Jiri, eds., Martinus Nihoff Publishers, Dordrecht, Henry Dunant Institute, Geneva, 1988, pp. 285–288.Google Scholar

7 See Articles 42–56 of the Regulations annexed to Hague Convention IV, 1899 and 1907 versions, Schindler, /Toman, , op. cit., pp. 75–93.Google Scholar

8 Commentary on the Fourth Geneva Convention relative to the protection of civilian persons in time of war, published under the general editorship of Pictet, Jean S., ICRC, Geneva, 1958, p. 3.Google Scholar

9 Ibid., p. 4.

10 Ibid., p. 4.

11 Ibid., p. 3.

12 See Bugnion, François, Le Comité international de la Croix-Rouge et la protection des victimes de la guerre, Thesis (in press), p. 263.Google Scholar

13 Report of the International Committee of the Red Cross on its activities during the Second World War (September 1, 1939–June 30, 1947). Vol. III, Relief activities, Geneva, 1948, p. 363 ff.Google Scholar

14 Report of the Joint Relief Commission of the International Red Cross, 1941–1946, Geneva, ICRC and League of Red Cross Societies, 1948, p. 441 Google Scholar. See also Bugnion, , op. cit., p. 267.Google Scholar

15 Ravitaillement de la Grèce pendant l'occupation 1941–1944 et pendant les premiers cinq mois après la libération. Rapport final de la Commission de Gestion pour les secours en Grèce sous les auspices du Comité international de la Croix-Rouge, ICRC, Athens, 1949, pp. 17–19 and pp. 168–171 Google Scholar. See also Bugnion, , op. cit., p. 271.Google Scholar

16 Report of the Joint Relief Commission, op. cit., pp. 436–437 Google Scholar. See also Bugnion, , op. cit., p. 265.Google Scholar

17 Report of the Joint Relief Commission, op. cit., p. 13 Google Scholar. See also Bugnion, , op. cit., p. 265.Google Scholar

18 See especially Part II of the Fourth Geneva Convention.

19 Commentary on the Additional Protocols, op. cit., p. 587 Google Scholar, paragraphs 1831 and 1832.

20 Resolution XXVIII, on the protection of civilian populations against the dangers of indiscriminate warfare, published in the International Review of the Red Cross, No. 56, 11 1965, pp. 588–590 Google Scholar. This resolution also appears in Schindler, /Toman, , op. cit., pp. 259–260.Google Scholar

21 Resolution 2444 (XXIII) of 19 December 1968, on respect for human rights in armed conflicts. See Schindler, /Toman, , op. cit., pp. 263–264.Google Scholar

22 See the list of these resolutions in the Commentary on the Additional Protocols, op. cit., p. 588, Note 16.Google Scholar

23 See especially Resolution 2675 (XXV) resuming the basic principles for the protection of civilian populations in armed conflicts, of 9 December 1970, in Schindler, /Toman, , op. cit., pp. 167–268 Google Scholar. See also, on relief actions, Resolution XXVI adopted by the 21st International Conference of the Red Cross, Istanbul, 1969, in International Review of the Red Cross, No. 104, November 1969, pp. 632–633.Google Scholar

24 Articles 54 of Protocol I and 14 of Protocol II.

25 On the relief activities undertaken during this conflict, see Hentsch, Thierry, Face au blocus: La Croix-Rouge internationale dans le Nigéria en guerre (1967–1970), Graduate Institute of International Studies, Geneva, 1973.Google Scholar

26 See the Commentary on the Additional Protocols, op. cit., p. 819, paragraph 2805.Google Scholar

27 On the legal aspects of the Spanish Civil War see Antonio Cassese,“The Spanish Civil War and Customary Law”, in Current problems of International Law, Cassese, Antonio, ed., Milan, 1975, pp. 287–317.Google Scholar

28 See the Commentary on the Fourth Geneva Convention, op. cit., p. 34.Google Scholar

29 This was the decision of the States that adopted Article 3 common to the Geneva Conventions, since the last paragraph of that article reads: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.

30 See the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Commentary, ICRC, Geneva, 10 1973, p. 130.Google Scholar

31 On the historical background to Protocol II, see the Commentary on the Additional Protocols, paragraph 4360 ff., pp. 1325 ff. For an analytical account of the discussions, see The Law of Non-International Armed Conflict, Protocol II to the 1949 Geneva Conventions, Levie, Howard S., ed., Martinus Nijhoff Publishers, Dordrecht, 1987 Google Scholar. For the history of the law see Abi-Saab, Rosemary, Droit humanitaire et conflits internes. Origines et évolution de la réglementation internationale, Henry Dunant Institute, Geneva, 1986.Google Scholar

32 See Protocol II, Part IV.

33 See Draft Additional Protocols, op. cit., p. 165.Google Scholar

34 See Commentary on the Additional Protocols, p. 1479, paragraph 4885.Google Scholar

35 Bothe, Michael, “Relief Actions: The Position of the Recipient State”, in Assisting the Victims of Armed Conflicts and other Disasters, Kalshoven, Fritz, ed., Martinus Nijhoff Publishers, Dordrecht, 1989, pp. 92–97, at p. 96.Google Scholar

36 See also“The Right to Humanitarian Assistance” in Implementation of international humanitarian law, protection of the civilian population and persons hors de combat, International Committee of the Red Cross, Doc. C. 174, 2/1, Geneva, 1991, pp. 6–12 Google Scholar; and Resolution 12 adopted by the Council of Delegates of the International Red Cross and Red Crescent Movement, at its meeting of 28–30 November 1991 in Budapest, on humanitarian assistance in situations of armed conflict, in International Review of the Cross, No. 286, 01–02 1992, pp. 56–57.CrossRefGoogle Scholar

37 Yearbook of the Institute of International Law, Vol. 63–11, p. 345. Article 5 reads:Google Scholar

“An offer by a State, a group of States, an international organization or an impartial humanitarian body such as the International Committee of the Red Cross, of food or medical supplies to another State in whose territory the life or health of the population is seriously threatened cannot be considered an unlawful intervention in the internal affairs of that State. However, such offers of assistance shall not, particularly by virtue of the means used to implement them, take a form suggestive of a threat of armed intervention or any other measure of intimidation; assistance shall be granted and distributed without discrimination.

States in whose territories these emergency situations exist should not arbitrarily reject such offers of humanitarian assistance.”

38 ICJ, Reports of Judgments, Advisory Opinions and Orders, The Hague, 1986, p. 125, paragraph 243.Google Scholar