IHL and Humanitarian Assistance

IHL and Humanitarian Assistance

Humanitarian assistance is a topic that may be dealt with the rules on the conduct of hostilities or the rules on the treatment of persons in the power of a party to an armed conflict. This is because humanitarian assistance also largely benefits to persons who are not protected persons and because one of the sources of the provisions related to it is to be found in the prohibition of starvation against civilians as a method of warfare.[1] From that prohibition it results that IHL recognizes the right for the civilian population of a State affected by an armed conflict to receive humanitarian assistance. Rules governing humanitarian assistance regulate in particular the conditions for providing humanitarian assistance, in the form of food, medicines, medical equipment or other vital supplies, to civilians in need. While a distinction has to be made between international armed conflict and non-international armed conflict under treaty law, the customary rule, as drafted in the ICRC Study on customary IHL, attempts to offer a unifying wording.

During an international armed conflict, parties to an armed conflict are under the obligation to permit relief operations for the benefit of civilians, including enemy civilians. Art. 23 of Convention IV outlines the basic principles applicable to relief assistance, which is only intended for civilians – do they belong to the party controlling them, allies or to enemies – and which is limited to “all consignments of medical and hospital stores and objects necessary for religious worship”. It also provides for the delivery of all “consignments of essential foodstuffs, clothing and tonics”, but only intended for children under fifteen and pregnant and nursing mothers. This provision is therefore rather restrictive. In addition, it also grants the States concerned the right to inspect the contents and verify the destination of relief supplies, as well as to refuse the passage of relief goods if they have well-founded reasons to believe that they will not be distributed to the victims but rather used in the military effort.

According to Art. 59 of Convention IV applicable to occupied territories, the occupying power has to make sure that the population receives adequate medical and food supplies.[2] If this proves impossible, the occupying power is obliged to permit relief operations by third States or by an impartial organization, and to facilitate such operations.[3] Art. 70 of Protocol I, which supplements the Geneva Conventions, has considerably developed the right to humanitarian assistance outside occupied territories. Under this provision, relief operations must be carried out for the benefit of the entire civilian population if there is a general shortage of indispensable supplies. However, Art. 70 contains a severe limitation: it states that the consent of all the parties concerned – including that of the State receiving the aid – is necessary for such assistance.

The rules regulating humanitarian assistance during non-international armed conflicts are far less developed. However, Art. 18(2) of Protocol II provides 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 subject to the consent of the High Contracting Party concerned.”

Although Art. 18 undoubtedly enhances the protection of the civilian population in non-international armed conflicts, it has been strongly criticized because it also makes relief actions contingent on government consent.

Consent has been at the heart of fierce controversy in recent armed conflicts. Indeed, if under conventional IHL, in all situations other than occupied territories (where the occupying power has an obligation to consent) the delivery of humanitarian assistance is subject to the consent of the party concerned, the questions in particular of who must consent and whether consent must be given in certain circumstances have arisen, because of the restrictive wording of the relevant provisions. In international armed conflicts, consent is required from a State on whose (non-occupied) territory the assistance must be delivered as well as the adverse and neutral State through the territory of which the assistance must pass or from which the assistance is initiated.

As for the question whether consent must be given in certain circumstances, it is today well established that consent may not be arbitrarily withheld if the conditions enumerated at the relevant provisions outlined above are fulfilled. This however leaves open the question of when a denial of consent is arbitrary. A way to answer this question, some suggest, is to remember that a denial of consent would only be justified if either the civilian population does not actually need the humanitarian assistance, or if the entity offering it is unable to carry out relief actions that are exclusively humanitarian and impartial in character without any adverse distinction. Others point out that a denial of consent is certainly arbitrary if it only concerns or affects beneficiaries of a certain race, colour, religion, faith, sex, birth or economic class or if the denial of consent violates any other obligation of the denying party, including the prohibition of starvation of civilians as a method of warfare.

Finally, in an attempt to unify all the obligations and controversies that have emerged over time, rule 55 of the ICRC Study on customary IHL reads: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control”.[4] There is no reference to a “High Contracting Party” and the terms “must allow” imply that the consent has to be asked but should not be denied, while recalling the conditions explained above.

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