In armed conflicts, belligerent parties have to allow and facilitate access for humanitarian relief to civilians in need. The humanitarian relief must be impartial in character and adverse distinction may not be made in delivering it. The consent of the territorial State is required although it cannot be arbitrarily withheld. It is controversial whether the consent of an armed group controlling the area targeted by the humanitarian operation is equally required or even sufficient in this regard.
In international armed conflicts, belligerent parties also have to allow representatives of the International Committee of the Red Cross and Protecting Powers access to all places where prisoners of war or protected persons may be. The names of the representatives appointed must be approved by the detaining power. In non-international armed conflicts, the ICRC may only “offer its services” to visit all persons deprived of their liberty for reasons related to the conflict.
See Humanitarian assistance; Civilians; Consent; Adverse distinction; International Committee of the Red Cross; Protecting Powers; Prisoners of war; Protected persons; Humanitarian organizations;
OUTLINE
LEGAL SOURCE
Access to the territory of a Party to the international armed conflict
Access to occupied territory
Access in non-international armed conflicts
Access under customary humanitarian law (applicable to IACs and NIACs)
Access to persons deprived of their liberty in non-international armed conflicts
GC I-IV, 3 (see updated ICRC Commentary)
Of Protecting Powers and ICRC to all places where POW or protected persons may be
- GCIII, 126
- Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of interment, imprisonment and labour. They shall have access to all premises occupied by prisoners of war, including places of departure, passage and arrival of transfers. They shall be able to interview the prisoners—and in particular the prisoners’ representatives—without witnesses, either personally or through an interpreter.
Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.
The Detaining Power and the Power on which the said prisoners of war depend may agree, if necessary, that compatriots of these prisoners of war be permitted to participate in the visits.
The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited.
- GCIV, 143
- Representatives or delegates of the Protecting Powers shall have permission to go to all places where protected persons are, particularly to places of internment, detention and work.
They shall have access to all premises occupied by protected persons and shall be able to interview the latter without witnesses, personally or through an interpreter.
Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.
Such representatives and delegates shall have full liberty to select the places they wish to visit. The Detaining or Occupying Power, the Protecting Power and when occasion arises the Power of origin of the persons to be visited, may agree that compatriots of the internees shall be permitted to participate in the visits.
The delegates of the International Committee of the Red Cross shall also enjoy the above prerogatives. The appointment of such delegates shall be submitted to the approval of the Power governing the territories where they will carry out their duties.
CASES
ICRC, Tracing Service (Para. 4)
Ethiopia/Somalia, Prisoners of War of the Ogaden Conflict
Eritrea/Ethiopia, Partial Award on POWs (Part A., Paras. 55-62)
Afghanistan/Canada, Agreements on the Transfer of Detainees (Part A., Paras. 4, 7, 10; Part B., Para. 10)
Eastern Ukraine, OHCHR Report on the Situation: November 2016 - February 2017
UN Security Council, Resolution 2664 on Humanitarian Exemptions to UN Sanctions Regime
BIBLIOGRAPHIC RESOURCES
DINSTEIN Yoram, "The Release of Prisoners of War", in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/M. Nijhoff, 1984, pp. 37-45.
SASSÒLI Marco, "The Status, Treatment and Repatriation of Deserters under International Humanitarian Law", in Yearbook of the International Institute of Humanitarian Law, 1985, pp. 9-36.
SCHAPIRO L. B., "Repatriation of Deserters", in BYIL, Vol. 29, 1952, pp. 310-324.
SHIELDS DELESSERT Christiane, Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study of Article 118, paragraph 1, of the Third Geneva Convention Relative to the Treatment of Prisoners of War, Zurich, Schulthess, Études suisses de Droit international, Vol. 5, 1977, 225 pp.
Further reading:
BAXTER Richard R., "Asylum to Prisoners of War", in BYIL, Vol. 30, 1953, pp. 489-498.
MURPHY Sean D., "Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unpriviliged Combatants'", in The George Washington Law Review, Vol. 75, No. 5/6, August 2007, pp. 1105-1164.