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Consent to humanitarian access: An obligation triggered by territorial control, not States' rights

Published online by Cambridge University Press:  04 February 2015

Françoise Bouchet-Saulnier
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Extract

The debate about the legality of cross-border relief operations has been revived in the wake of the failures experienced by international humanitarian organizations in their response to humanitarian needs in Syria.

Type
Comments and Opinions
Information
International Review of the Red Cross , Volume 96 , Issue 893: Scope of the law in armed conflict , March 2014 , pp. 207 - 217
Copyright
Copyright © icrc 2015 

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References

1 See, for instance, Pierre Kraehenbuhl, “There Are No ‘Good’ or ‘Bad’ Civilians in Syria – We Must Help All Who Need Aid”, The Guardian, 3 March 2013, available at: www.theguardian.com/commentisfree/2013/mar/03/red-cross-aid-inside-syria; Brauman, Rony, ”Médecins Sans Frontières and the ICRC: Matters of Principle”, International Review of the Red Cross, Vol. 94, No. 888, pp. 1523–1535CrossRefGoogle Scholar; Gillard, Emanuela-Chiara,” The Law Regulating Cross-Border Relief Operations”, International Review of the Red Cross, Vol. 95, No. 890, pp. 351–382CrossRefGoogle Scholar.

2 See for instance OCHA, “Thematic Areas: Humanitarian Access”, available at: www.unocha.org/what-we-do/policy/thematic-areas/humanitarian-access.

3 See most recently, for instance, the UNSC resolution on humanitarian access in Syria, UN Doc. S/RES/2139, 22 February 2014, in particular paras 4–12.

4 E.-C. Gillard, above note 1.

5 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 3 and 23; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Art. 70.1; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1987) (AP II), Art. 18(2).

6 See common Arts 9/9/9/10 of the GCs for international armed conflicts; GC IV, Art. 59 for occupation; AP II, Art. 18 for non-international armed conflicts.

7 See AP I, Art. 70(1) for international armed conflicts.

8 E.-C. Gillard, above note 1, in particular pp. 356–363.

9 AP I, Art. 70(1).

10 UNGA Res. 182 (XLVI), Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, UN Doc. A/RES/46/182, 19 December 1991.

11 UN Doc. A/RES/58/114 (LVIII), Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, 17 December 2003.

12 AP I, Art. 70(1).

13 Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, pp. 1475–1481.

14 In armed conflicts as polarized as the Syrian one, the parties to the conflict may be reluctant, for political reasons, to have humanitarian organizations maintain relations with the enemy. However, it is an abuse of the law for the State to impose a monopoly on humanitarian relief, allowing only organizations affiliated with itself (such as the National Red Cross/Red Crescent Society) to provide aid. According to both IHL and the rules of the International Red Cross and Red Crescent Movement, only the ICRC can act as a neutral humanitarian intermediary in situations of armed conflict.

15 Article 1 of AP II completes common Article 3 without modifying its scope of application. It is therefore logical to assume that the more restrictive provisions of Article 18(2) do not cast doubt on the validity of assistance offers and special agreements concluded in accordance with common Article 3 between relief organizations and non-State parties.

16 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), pp. 193–202CrossRefGoogle Scholar.

17 UNSC Res. 2127, 5 December 2013.

18 UNSC Res. 2139, 22 February 2014; UNSC Res. 2127, 5 December 2013; Statement by the President of the Security Council, UN Doc. S/PRST/2013/15, 2 October 2013.

19 On this, see UNSC Res. 1674, 28 April 2006, para. 5, on the protection of civilian victims of conflict, which clearly establishes the responsibilities of parties to take any required measures to ensure the population's safety, condemns the intentional denial of humanitarian assistance and demands that all parties put an end to such practices.

20 It is to allow for the rescue and care of injured, and retrieval of those killed, from the battlefield that Henri Dunant participated in the creation of the Comité International de Secours aux Blessés and supported the drafting of the first Geneva Convention in 1864.

21 This specific protection can be found in GC IV, Arts 3, 16, 18, 19, 20, 21, 22 and 23. In both Additional Protocols, this protection was improved and extended to non-international armed conflicts. It can be found in AP I, Arts 8–31, and in AP II, Arts 7–12. In customary humanitarian law, Rules 25, 26, 28, 29, 30 and 110 listed in the ICRC Customary Law Study, above note 16, are relevant.

22 The Review dedicated a special issue to this problem. See International Review of the Red Cross, Vol. 95, No. 890, Violence against Health Care (I): The Problem and the Law.

23 Amnesty International, Health Crisis: Syrian Government Targets the Wounded and Health Workers, 25 October 2011, p. 21, available at: www.amnesty.org/en/library/info/MDE24/059/2011.

24 Sophie Delaunay, Condemned to Resist: Professionals in Humanitarian Assistance and Protection, 10 February, 2014, available at: http://phap.org/articles/condemned-to-resist; Amnesty International, Squeezing the Life out of Yarmouk: War Crimes against Besieged Civilians, 10 March 2014, available at: www.amnesty.org/en/library/info/MDE24/008/2014/en.

25 AP I, Arts 16(1) and 16(2); AP II, Arts 10(1), 10(2) and 104.

26 AP I, Art. 16(3).

27 AP I, Art. 16(3).

28 In most domestic legal systems, obligations of notification are set out in a way that allows for the conflicting duty to abide by medical ethics to be taken into account. In such a system, sanctions are not automatic but are pronounced by a judge who evaluates the balance that has to be struck between the two competing duties in the case at hand.

29 UN Office of the High Commissioner for Human Rights (OHCHR), Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”), UN Doc. HR/P/PT/8/Rev.1, 2004, Arts 48–73.

30 The text stresses the primacy of medical ethics and forbids that medical personnel who comply with these rules of conduct be punished. It then states that confidentiality when dealing with the sick and wounded must be respected by all. The text mentions that exceptions to these rules must be spelled out in domestic law. It therefore relies on the guarantees given by the law regarding dual obligations and at the same time protects medical personnel from requests issued by executive civil or military powers in times of armed conflict.

31 Consent or refusal does not need to be explicit. Authorities may prefer to tolerate relief operations rather than explicitly authorize them. Similarly, refusals are seldom explicit. Nevertheless, delays in responding or certain conditions imposed by the authorities require relief organizations to find other channels to respond to the urgency of some situations.

32 On this, see R. Brauman, above note 1.

33 On several occasions, the UNSC decided on international military interventions with the goal of facilitating and securing the delivery of humanitarian aid and, more recently, the protection of populations. International sanctions for war crimes, crimes against humanity and genocide, as well as referrals to ad hoc tribunals or the International Criminal Court, have also been imposed by the UNSC without the consent of the States concerned.

34 In non-international armed conflicts specifically, AP II, Art. 3 clearly stipulates that “nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs”. The UNSC can define a situation as a “threat to international peace and security” and decide upon an international intervention on those grounds. It would be, however, incorrect to base such an intervention on a violation of the rules provided by IHL. Arbitrary denial constitutes a violation of AP II, Art. 18(2), but cannot override the prohibition of intervention stipulated in AP II, Art. 3.

35 In UNSC Res. 2165, 14 July 2014, the UNSC rejected the reference to Chapter 7 and the option to use force in the case of a violation of its decisions, but it said that the resolution – and therefore its interpretation of IHL – has a legally binding effect under Article 25 of the UN Charter.

36 UNSC Res. 2139, 22 February 2014.

37 UNSC Res. 2127, 5 December 2013; UNSC Res. 2139, 22 February 2014; UNSC Res. 2165, 14 July 2014.

38 UNSC Res. 2139, 22 February 2014.

39 UNSC Res. 2165, 14 July 2014.