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From humanitarian assistance to “intervention on humanitarian grounds”?*

Published online by Cambridge University Press:  13 January 2010

Maurice Torrelli
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Extract

While States ever more ardently defend their sovereignty, which does little to improve international cooperation, and as the application of humanitarian law in armed conflicts declines, men of good will throughout the world are doing their utmost to reverse these trends. The century now drawing to a close has witnessed a plethora of private initiatives taken in an effort to temper reasons of State by more humane considerations. Many non-governmental organizations, some symbolically styling themselves “without borders”, have taken over where governments can no longer cope, organizing relief, combating drought, preserving the environment or improving sanitary conditions. These voluntary organizations whose vocation is to serve mankind are without question pursuing humanitarian aims as defined in the first Red Cross principle, which is “to prevent and alleviate human suffering wherever it may be found”, and whose “purpose is to protect life and health and to ensure respect for the human being”. Emergency medical assistance organizations, stating that they wish to remain independent of the powers that be, demanding freedom of action to help all victims and encouraged by the example set by Henry Dunant and the ICRC, do not hesitate to claim that their activities fall within the terms of an as yet unwritten body of law entitling them to bring assistance to needy civilian communities, even against the will of the government. Indeed, they believe that receiving proper care is one of the basic human rights of the individual, wheresoever and whosoever he may be. Such basic rights know no national boundary. While awaiting recognition of their activities, the duty to intervene is created by moral considerations.

Type
Humanitarian Assistance
Information
International Review of the Red Cross (1961 - 1997) , Volume 32 , Issue 288 , June 1992 , pp. 228 - 248
Copyright
Copyright © International Committee of the Red Cross 1992

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Footnotes

*

United Nations translate the French “droit d'ingérence humanitaire” by “right to intervene on humanitarian grounds”. See also note 1, page 215.

References

1 Dumas, Roland, “La France et le droit d'‘ingérence humanitaire’”, Relations internationales et stratégiques, No. 3, 1991, p. 57.Google Scholar

2 Ibid., p. 60.

3 Bettati, Mario: “This principle, while not appearing in the 1949 Geneva Conventions, is not conceptually alien to them”. “Un droit d'ingerence?”, RGDIP 1991, p. 645.Google Scholar

4 In this connection, Bernard Kouchner in Biafra went so far as to bear witness “against the Red Cross — with the support of Sartre — because it closed its eyes to the food embargo used as a means of warfare. I did not wish to repeat the error of the last war when the Red Cross kept silent about the extermination camps”. Le monde aujourd'hui, 9–10 03 1986, p. XII.Google Scholar

5 Rufin, Jean-Christophe, “La maladie infantile du droit d'ingérence”, Le Débat, Gallimard, No. 67, 11–12 1991, p. 25.Google Scholar

6 See especially Blondel, Jean-Luc, “Assistance to protected persons”Google Scholar; Jakovljević, Boško, “The right to humanitarian assistance”Google Scholar; Meyer, Michael A., “Humanitarian action: a delicate balancing act”Google Scholar; Macalister-Smith, Peter, “Non-governmental organizations and coordination of humanitarian assistance”, IRRC, No. 260, 09–10 1987 CrossRefGoogle Scholar. Maurice, Frédéric and de Courten, Jean, “ICRC activities for refugees and displaced civilians”, IRRC, No. 280, 01 –02 1991 CrossRefGoogle Scholar. Macalister-Smith, Peter, “Protection of the civilian population and the prohibition of starvation as a method of warfare”, IRRC, No. 284, 09–10 1991.CrossRefGoogle Scholar

7 For example, Article 81, para. 1, of Protocol I reads “The Parties to the conflict shall grant to the International Committee of the Red Cross all facilities within their power so as to enable it to carry out the humanitarian functions …”; paras. 2 and 3 state that the parties shall grant the “facilities necessary” to Red Cross organizations or “facilitate in every possible way” assistance by other Red Cross organizations; under para. 4, “the High Contracting Parties and the Parties to the conflict shall, as far as possible, make facilities similar to those mentioned in paragraphs 2 and 3 available to the other humanitarian organizations”.

8 Yearbook of the Institute of International Law, Vol. 63–111, 1990, pp. 338–345.Google Scholar

9 “The right of initiative of the International Committee of the Red Cross”, German Yearbook of International Law, Vol. 22, 1979, p. 365.Google Scholar

10 See Torrelli, Maurice, “La protection du médecin volontaire”, Annales de droit international médical, No. 33, 1986, Palais de Monaco, resolution III, p. 79.Google Scholar

11 26th International Conference of the Red Cross and Red Crescent, Implementation of international humanitarian law: Protection of the civilian population and persons hors de combat, ICRC document C.1/4.2/1, Geneva, 1991, p. 9.Google Scholar

12 This interpretation is confirmed by the 1989 resolution of the Institute of International Law, as quoted. It should also be remembered that Article 89 of Protocol I provides that in the event of serious violations of humanitarian law, States undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with its Charter.

13 Resolution 43/131 stresses the importance of their role: “Aware that alongside the action of Governments and intergovernmental organizations, the speed and efficiency of this assistance often depends on the help and aid of local and non-governmental organizations working with strictly humanitarian motives”.

14 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Sandoz, Yves, Swinarski, Christophe, Zimmermann, Bruno, eds.) ICRC, Martinus Nijhoff Publishers, Geneva, 1987 Google Scholar — Protocol II, Article 3, para. 4503. It is thus difficult to agree with Mario Bettati that the principle of non-intervention “refers only to States and intergovernmental organizations” ( op. cit, RGDIP 1991, p. 651).Google Scholar

15 These resolutions, while not referring to situations of armed conflict, concern “humanitarian assistance to victims of natural disasters and similar emergency situations”, which seems implicitly to include man-made disaster situations, in other words, armed conflicts.

16 Bettati, Mario, Trimestre du Monde, 1992, p. 3.Google Scholar

17 Ibid.

18 Bettati, Mario, op. cit., RGDIP 1991, p. 656.Google Scholar

19 Meurant, Jacques, “Principes fondamentaux de la Croix Rouge et humanitarisme moderne”, in Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, ICRC, Martinus Nijhoff Publishers, 1984, p. 893.Google Scholar

20 This would apply specifically to the volunteer doctor who had taken the oath as modified by Médecins du Monde: “As a doctor, faithful to the laws of honour and probity set forth in the Hippocratic Oath, I undertake, to the best of my ability, to care for those in the world who are suffering in body or mind. I refuse to accept that science or medical knowledge include oppression or torture, that human dignity be impaired or horror concealed. I undertake to bear witness. I make these promises, solemnly, freely and upon my honour.”

21 Bettati, Mario, “Assistance humanitaire et droit international”, in Les droits de l'homme et la nouvelle architecture de l'Europe, a publication of the Institute of Peace and Development Law, Nice, 1991, p. 169.Google Scholar

22 Dupuy, Pierre-Marie, “Après la guerre du Golfe”, RGDIP, Vol. 95/1991/1993, p. 269.Google Scholar

23 Trimestre du Monde, 1992, p. 12.Google Scholar

24 Discrimination between peoples: on 25 April 1991 the Algerian Foreign Minister asked for humanitarian intervention on behalf of the Palestinian people; also discrimination between Iraqi Shiites and Kurds.

25 Rufin, Jean-Christophe, op. cit., p. 27.Google Scholar

26 Rufin, Jean-Christophe, op. cit., p. 29.Google Scholar

27 Le Monde, 12 03 1991.Google Scholar

28 Dumas, Roland, op cit., p. 62.Google Scholar

29 Bettati, Mario, op. cit. (note 21 above), pp. 183–184.Google Scholar

30 This was intended to remind States that, according to the terms of Article 70, para. 5, of Protocol I, “the Parties to the conflict and each High Contracting Party concerned shall encourage and facilitate effective international co-ordination of the relief actions …”.

31 Despite, or because of, the imprecision of the text, it may be considered that some of them could fall into the category of “impartial international humanitarian organizations” mentioned in Protocol I, Article 9, para. 2(c).

32 Annales de droit international médical, No. 33, 1986, resolution III, p. 79.Google Scholar

33 ICRC Bulletin, No. 191, 12 1991, p. 1.CrossRefGoogle Scholar

34 Interview with Sommaruga, Cornelio, ICRC Bulletin, No. 192, 01 1992, p. 2.Google Scholar

35 See Macalister-Smith, Peter, “Protection of the civilian population and the prohibition of starvation as a method of warfare — Draft texts on international humanitarian assistance”, IRRC, No. 284, 09–10 1991, pp. 440–459 CrossRefGoogle Scholar; Meyer, Michael A., “Humanitarian action: a delicate balancing act”, IRRC, No. 260, 09–10 1987, pp. 485–500.CrossRefGoogle Scholar

36 Meyer, , op. cit, p. 500.Google Scholar