Safety and Protection of Humanitarian Workers
© Springer International Publishing Switzerland 2015
Pat Gibbons and Hans-Joachim Heintze (eds.)The Humanitarian Challenge10.1007/978-3-319-13470-3_1212. Safety and Protection of Humanitarian Workers
(1)
NOHA Faculty, University of Warsaw, Warsaw, Poland
12.1 Introduction
Systematically, the numbers of incidents involving humanitarian workers as victims grow larger. In the past, such attacks tended to be quite random in nature, but with time they have become more organized and more purposeful. Humanitarian workers fall victim to bombings, direct attacks, kidnapping, thefts, as well as collateral damage security incidents. Such workers have always been vulnerable, considering that they operate in a dangerous environment. The conditions are most precarious during international and internal armed conflicts, yet violence also erupts during humanitarian activity in response to natural disasters.
The international community was horrified when six workers of the International Red Cross were killed in their sleep in Chechnya on 17 December 1996 (BBC, 17 December 1996). On 19 August 2003 in Iraq, 24 workers, including UN Special Representative Sergio Viera de Mello (BBC, 19 August 2003), were killed in a bomb attack. On 7 August 2010 the Taliban in Afghanistan admitted to having killed ten aid workers on charges of espionage (The Associated Press, 7 August 2010). The list of the killed and wounded goes on and on (Aid Worker Security Report 2011, p. 2).1 The most dangerous states are Afghanistan, Syria, Sudan (Darfur), Somalia, and Pakistan. In several cases, the untenable security situation forced aid institutions to reduce or withdraw the aid they offer, e.g. in Chechnya, Iraq, and Afghanistan (Aid Workers Security Reports).
The increase in attacks against humanitarian workers in recent years raises once again the question concerning the scope of their protection, as well as ways to improve it. A significant part of international law, in particular international humanitarian law and human rights law, has as its objective the protection of potential victims of armed conflicts and of human rights violations, especially civilians. The issue is also widely discussed in the academic literature on the subject (Humanitarian Debate, International Review of the Red Cross 2013; Primoratz 2007, 2012; Ramcharan 2006; Carpenter 2006; Siobhan 2009). What is missing, however, is systematic research into the scope of protection of humanitarian workers, and a debate as to what further measures should be adopted in order to limit the attacks against those who bring humanitarian aid, and to ensure their safety. A response to the following question is necessary: how do we achieve the right balance between the needs of victims of humanitarian crises and ensuring safety to humanitarian workers?
The objective of this paper is to analyse the factors that have a negative impact on the humanitarian space, i.e. the space where humanitarian workers are able to carry out their work effectively, and to consider the limitations resulting from international law and its implementation. The paper also proposes an assessment of the response measures that are undertaken to improve the security conditions of humanitarian workers.
The paper focuses on the safety of humanitarian workers in terms of protecting their life and health. As far as the definition of a humanitarian worker is concerned, the authors assume the term to denote workers, both international (i.e. persons who are not citizens of the state where the humanitarian assistance is provided) and national (citizens of the state in which the assistance is provided), who are involved in humanitarian assistance. Humanitarian assistance is understood as short-term emergency assistance under conditions of humanitarian crisis, consisting of actions aimed at ensuring that the basic needs of the affected population are being met.
12.2 Factors Impacting on the Safety of Humanitarian Personnel
The factors that impact negatively on the safety conditions of humanitarian workers may be divided into two groups. The first group includes the adverse effects of what occurs externally, beyond the control of the humanitarian workers themselves. The second group pertains to a shift in the concept and practice of humanitarian aid, and may therefore be modified by those involved in humanitarian assistance.
A useful notion in an analysis of the external factors that contribute to security incidents involving humanitarian personnel is that of humanitarian space, often defined as a ‘conducive humanitarian operating environment’ (UN Office for the Coordination of Humanitarian Affairs 2003) or ‘scope for neutral and impartial humanitarian action in the midst of conflict (Studer 2001, pp. 367–391). It is crucial for effective activity of the International Committee of the Red Cross, other humanitarian organizations, as well as for inter-governmental organizations like UNICEF or the Office of the United Nations High Commissioner for Refugees (UNHCR). In recent years, increasingly worse security conditions have been noted, spurring reports on the shrinking of humanitarian space, reduction of humanitarian space, or erosion of humanitarian space (Beauchamp 2008; Abild 2009; Inter-Agency Standing Committee 2008; Khambatta 2009; Wagner 2005), in particular with reference to the areas with active military conflicts.
A principal reason behind the negative trends in security conditions with regard to humanitarian workers has been the shift in the nature of conflicts (Strachan and Scheipers 2011). For a number of years, internal conflicts have been prevalent. Such conflicts often play out against a background of weak state structures, with their resultant absence of territorial control hindering the operations of humanitarian organizations. The level of trust among the organizations providing aid and the state tends to be very low under such conditions.
Non-state participants of armed conflicts often refuse to perceive themselves as parties to the instruments of international law. They believe to be involved in an unequal fight, and thus to be forced to make use of illegal measures in order to achieve their goals. They can be rather cunning, and for many of them war is a way of life, and also a money-making endeavour. Criminal groups often have a vested interest in maintaining a certain level of violence, and humanitarian personnel in many instances provide the most easily available target. Moreover, disintegration of chains of command is typical of such groups, making it more difficult to establish contact and offer information on the plans regarding the supply of humanitarian aid (First Periodical Meeting on International Humanitarian Law, International Review of the Red Cross 1998, pp. 366–394; Ewumbue-Monroe 2006, pp. 905–924).2
Where the nature of the conflicts is ethnic, and the target is a civilian group, the presence of humanitarian personnel is hardly desirable to the assailants. In fact, it makes operations difficult and becomes an obstacle in attaining their objectives, besides often bearing witness to the crimes and thus becoming an enemy. The cultural aspect has also been pointed out: with regard to the recent conflicts in Afghanistan, Iraq, and Sudan, the ICRC former president Jakob Kellenberger has noted the trend towards “polarization” and “radicalization”, which he found to be among the results of the ‘war on terrorism’ (ICRC Annual Report 2004, p. 4; Hazan and Berger 2004). Humanitarian workers have often been perceived as representatives of a foreign Western world, and treated with suspicion, as if they had an agenda that included implementing foreign or hostile values besides doing their ostensible work. Humanitarian personnel who are involved in the promotion of human rights and thus who criticize either the authorities or the living conditions of the local communities are particularly vulnerable to attacks. In Iraq for example the Western aid organizations were perceived as an outpost of the international occupant forces (Carle and Chkam 2006, p. 9).
Also important is the unique nature of the problem of disrespect for international humanitarian law and human rights law. No other area of international public law is subject to violations on such a massive scale. The rights of individuals and the respect thereof tend to suffer due to the enormous power disproportion between the individual and the state and other actors in wars who have the responsibility for observing the law. The situation is exacerbated by the fact that the sanctions for violations of this type are often rather ineffective.
In this respect, the authority of international law has been undermined when the United States, along with its allies in the ‘war on terror’, essentially took a stance against its fundamental standards. The return of the debate on torture, holding individuals suspected of connections with terrorism, and difficulties in cooperation between the representatives of the International Red Cross and the leaders of the superpower might be interpreted as justifying disrespect of international law (Samuel and White 2012; Gaston 2012).
Principal factors aggravating the poor safety conditions of humanitarian workers that rest on the part of the humanitarian aid organizations include the lack of transparency and the increasing politicization of humanitarian action. Clearly, humanitarian actors vary widely (Beigbeder 1991). Aid is offered by United Nations institutions, Red Cross and Red Crescent institutions, local and international NGOs, private institutions, and states. For many of them, humanitarian aid is only one aspect of their involvement. Parties to the conflicts in general, and local communities in particular, often find it difficult to distinguish those who bring aid from those who are in pursuit of political, ideological, or other objectives (Carle and Chkam 2006, pp. 2–5). More and more often, states provide humanitarian aid while working to satisfy their own political or security-related interests. The aid is directed to countries with which the aid-providing states have historical, political, or cultural ties, which gives rise to questions regarding the impartiality of the decisions on its allocation. Furthermore, armed forces are with increasing frequency required to carry out humanitarian work. United Nations institutions rely on the support of international armed forces with presence in the region of conflict (Bessler and Karouko 2006, pp. 4–10; Studer 2001, pp. 374–377). Providing safe operating conditions to humanitarian workers is also within the remit of EU-mandated troops.3 Civil-military cooperation certainly improves the potential for reaching those in need of aid, and in a short-term perspective may boost the safety of both humanitarian workers and the civilian population to whom the aid is directed. Yet the same model of cooperation leads to the disintegration of the civilian nature of humanitarian work (Pommier 2011, pp. 24–25). The International Committee of the Red Cross has pointed out that it leads to erosion of the separation between humanitarian and military spaces, and consequently to the disruption of perceptions of the status and role of humanitarian personnel (Mc Hugh and Bessler 2006, p. 7).
Furthermore, as noted for example by the former ICRC President Cornelio Sommaruga, the term “humanitarian” is used indiscriminately; a large part of the overall international response to a conflict is labelled “humanitarian”. This broad application of the term distorts the perception of the unique nature of actual humanitarian work, which requires the observance of the fundamental principles of humanity, impartiality, neutrality, and independence (Sommaruga 1997).
Statistically, members of NGOs fall victim to attacks most frequently. They often operate in difficult security conditions, without adequate background research and without proper preparation. Many NGOs cannot afford to hire highly qualified personnel (Stoddard and Harmer 2010, p. 8). Often, they rely on volunteers, and these volunteers receive no basic training either with regard to safety or to methods of communication with the local population (Aid Workers Security Report 2011, p. 1). The abundance of NGOs hinders organized cooperation in terms of exchanging crucial safety-related information: instead of cooperating, NGOs very often compete with one another and thus become more vulnerable to manipulation by local decision-makers.
12.3 Legal Protection of Humanitarian Workers
A comprehensive assessment of the situation of humanitarian workers requires an analysis of their legal protection. In situations outside of armed conflict, the scope of that protection is determined by human rights law, as well as specific regimes such as international disaster response law and the Convention on the Safety of United Nations and Associated Personnel (CSUNAP) of 1996 and its Optional Protocol of 2005. In situations of armed conflict, further protection is provided by international humanitarian law and the provisions of international criminal law on war crimes. In each case, full assessment of the scope of legal protection requires a review of national laws.
12.3.1 Outside of Times of Armed Conflict
Situations which do not qualify as armed conflict but that necessitate humanitarian aid range from natural disasters, through unilateral violence against civilians and unrest that has not yet reached the stage of armed conflict, to post-conflict situations where sporadic acts of violence continue to occur. Across this variety of scenarios, in terms of protection of humanitarian workers, only one fundamental legal regime applies, i.e. human rights law.
Human rights protect the life and safety of every human being, which naturally pertains also to humanitarian workers, whether or not they are members of armed forces. Even under conditions of a “public emergency which threatens the life of nation”, when states are allowed to limit certain human rights, there nonetheless remain rights and liberties, such as the right to life, the ban on torture and slavery, or the ban on punishing for an act or omission which were not criminal offence at the time they occurred, from which no derogation can be made.4 These regulations are crucial in the context of humanitarian aid because they guarantee the protection of life and health of humanitarian workers and ensure their authorisation to offer humanitarian aid and not be subject to abuse for that reason. Operations of humanitarian workers may have, and often do have, immense impact on the preservation of life and safety of those in need of humanitarian aid. Not only are the states obliged to respect human rights (which in essence is a ban on state authorities infringing these rights), but they also have the positive obligation to ensure that human rights are observed, which requires actual action on their behalf. In the case of alien humanitarian workers, the protection arising out of (universal) human rights are augmented by the right to diplomatic care vested in their state of citizenship (Sandurski 2000, p. 13). This right means that the state of citizenship is authorized to represent its citizens against the host state if the host state violates their rights or fails to prevent and punish violations directed at them.5
The responsibility of the state to ensure the safety of humanitarian workers is also the focus of the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (IDRL Guidelines) which were unanimously adopted on 30 November 2007 by the state parties to the Geneva Conventions and the International Red Cross Red and Crescent Movement at the 30th International Conference of the Movement.6 The IDRL Guidelines are not binding, yet they are invaluable in effecting a shift in national laws pertaining to disaster response and facilitation of disaster relief.7
Point 22 of the IDRL Guidelines, entitled Security, reads as follows:
Affected States should take appropriate measures to address the safety and security of disaster relief and initial recovery personnel of assisting States and eligible assisting humanitarian organizations and of the premises, facilities, means of transport, equipment and goods used in connection with their disaster relief or initial recovery assistance. Assisting States and assisting humanitarian organizations should also take appropriate steps in their own planning and operations to mitigate security risks.
The above essentially re-states the general duty of states to ensure the security of those under their jurisdiction. Yet in contrast to documents focusing on overall human rights protection, the IDRL Guidelines distinguish a separate class of “disaster relief and initial recovery personnel” that is at risk of attacks, and to whose protection the state should therefore pay particular attention.8 Importantly, the IDRL Guidelines emphasize the duty of the helpers to take measures to mitigate risks to their safety. The fact of providing humanitarian aid gives nobody the right to recklessly risk their life at the expense of the host state.
A particular regime of protection applies to humanitarian workers providing aid within the framework of United Nations operations. Protection of personnel serving on peacekeeping missions as well as other UN-mandated missions has been a concern of the Secretary-General,9 the General Assembly,10 and the Security Council11 since the 1990s. In 1994, the General Assembly adopted the Convention on the Safety of United Nations and Associated Personnel that has, as of 13 January 2015, gathered 92 signatories (Christianebo Urloyannis-Vrailas 2005, pp. 561 ff.; Bouvier 1995, pp. 638 ff.; Bloom 1995, pp. 621 ff.; Engdahl 2002, pp. 205 ff.).12 The purpose behind the Convention is to enhance the protection of UN and associated personnel who, as noted in the preamble to the Convention, make an important contribution in respect of United Nations efforts in the field of humanitarian operations.
The Convention prohibits attacks on UN and associated personnel and any actions that prevent them from discharging their mandate, and imposes on the states the duty to take all appropriate measures to ensure the safety and security of United Nations and associated personnel.13 It provides that in principle, if UN or associated personnel are captured or detained in the course of the performance of their duties and their identification has been established, they may not be subjected to interrogation and they are to be promptly released and returned to United Nations or other appropriate authorities, and until the time of their release, are to be treated in accordance with universally recognized standards of human rights and the principles and spirit of the Geneva Conventions of 1949.14 However, the core regulations of the Convention serve to criminalize certain offences targeted at the personnel protected under the Convention15 and to determine how the perpetrators of such offences are to be handled, including international cooperation in bringing them to justice.16
From the moment of commencement of negotiations of the Convention, the most problematic issue was the scope of the application of the Convention. The determination of that scope in turn required agreement as to, firstly, the definition of protected personnel, and secondly, of the type of operations to which the Convention was to apply. The only classes of persons protected under the Convention are “United Nations personnel” and “Associated Personnel.”17 Under the definition adopted in the Convention, UN personnel means:
(i)
Persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a United Nations operation;
(ii)
Other officials and experts on mission of the United Nations or its specialized agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a United Nations operation is being conducted.
For example, representatives of UNOCHA or UNHCR, if they are present in an official capacity in the area where a United Nations operation is being conducted, fall into the category of UN personnel. The need to extend to UN employees the same protection that is granted to peacekeepers was quite clear. Employees of various UN agencies are involved in peacebuilding operations as well as humanitarian assistance within peace missions, and when they work in the area where the operation is conducted, they face the same risks as the blue helmets.
Controversies arose however with regard to the category of “Associated Personnel”. Certain states were unwilling to define the category in broad terms, mainly due to their distrust of NGOs and their unwillingness to bear the responsibility for ensuring their protection. Ultimately the definition reads as follows:
(i)
Persons assigned by a Government or an intergovernmental organization with the agreement of the competent organ of the United Nations;
(ii)
Persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the International Atomic Energy Agency;
(iii)
Persons deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary-General of the United Nations or with a specialized agency or with the International Atomic Energy Agency to carry out activities in support of the fulfilment of the mandate of a United Nations operation.
For the purposes of this paper, the third sub-category above is of particular interest. Protection under the Convention does not apply to all humanitarian workers; it only applies to those who work for organizations who have an agreement with the Secretary-General of the United Nations, a specialized agency, or the IAEA. Moreover, these workers are only protected when they carry out activities in support of the fulfilment of the mandate of a UN operation.
It is rather difficult to determine whether there is a formal connection between the United Nations and a given organization. The Convention does not require the United Nations to control the organization (different opinion: Bloom 1995, p. 624). In order for the Convention to apply, it is sufficient to demonstrate (as emphasized by the Secretary-General) “any contractual link or a treaty arrangement institutionalizing the cooperation between the United Nations and a non-governmental organization in support of a United Nations operation or in the implementation of its mandate.”18 The practice of the United Nations so far indicates that two types of agreements have been prevalent: “partnership agreements” between UNHCR, UNDP, UNICEF, WFP or other UN bodies executing humanitarian programmes and non-governmental organizations whose role consists in the implementation of specific projects, and “security agreements” between the Office of the United Nations Security Coordinator and non-governmental organizations participating in the implementation of assistance activities of the UN (Engdahl 2002, pp. 223–224).19 However, it is the position of the sub-contractors of the organizations that have formal ties to the UN that makes the solution problematic. Local workers of local NGOs that may lack a formal agreement with the UN are more vulnerable to attacks, yet beyond the scope of protection offered by the Convention. It is hardly an acceptable situation (Ecroth 2010, p. 19).
Further limitations of the applicability of the Convention are connected to the types of operations listed by the Convention. An operation must meet three requirements conjunctively. Firstly, it must be established by the competent organ of the United Nations in accordance with the Charter of the United Nations. Secondly, it must be conducted under United Nations authority and control. There is no stipulation as to the degree of UN control required, i.e. whether the duty to report on the proceedings is sufficient, or whether the UN must have full control of the operation (not only overall political control but also command in the field). The issue is crucial in that experts disagree whether, in the light of these questions, operations authorized by the Security Council but conducted by a given state or a coalition of states fall under the Convention’s definition (Cf. Christianebo Urloyannis-Vrailas 2005, pp. 566–567 with Commentary of Mahnoush Aransjani, available on http://untreaty.un.org/cod/avl/ha/csunap/csunap.html). It must be noted that the Security Council increasingly often encourages regional organizations to conduct specific operations when it finds itself unable to muster sufficient resources on tight deadlines. This efficiency issue on the part of the Security Council should not deprive the forces that are acting on the Security Council’s recommendation of the protection under the special regime, be it as UN personnel or as associated personnel.
Thirdly, the operation must be either established for the purpose of maintaining or restoring international peace and security, or it should be declared by the Security Council or the General Assembly for the purposes of the Convention that there exists an exceptional risk to the safety of the personnel participating in the operation. Application of the Convention has been excluded with regard to operations “authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.” This is a very strict limitation. It is understandable why members of UN enforcement missions engaged in combat actions may not be granted immunity against attacks from the opponent (Bouvier 1995; Engdahl 2002, p. 233).20 Yet it is hard to grasp why civilian workers offering humanitarian aid should lose protection just because one component of the mission involves participation in hostilities (cf. Christianebo Urloyannis-Vrailas 2005, p. 568). Furthermore, it is extremely difficult to determine whether an operation has an exclusively peacekeeping character, whether its character is exclusively peace-enforcement, of whether it is mixed. These terms lack definitions, and the Security Council rarely offers this type of information about the missions it authorizes (Bloom 1995, p. 625). It appears therefore that in the absence of a formal determination of a given operation by the Security Council as falling into the category of enforcement, the operation is within the scope of application of the Convention. Regrettably, the states have decided not to extend the protection under the Convention to humanitarian operations (not to be mistaken with humanitarian interventions), despite proposals to this effect.
The Convention applies automatically only with regard to operations authorized by the Security Council (which by definition is responsible for the maintenance of peace and security, and thus there is little need to rely on the legal basis of the resolution in Chapter VII or VI of the UN Charter) or by the General Assembly acting pursuant to the resolution Uniting for Peace.21 In any other case, a declaration regarding an exceptional risk (a triggering declaration) is required (Llewellyn 2006, p. 719), which has proved to be most challenging. Firstly, there are no clear criteria for assessing that risk. Furthermore, declarations of this nature are considered political, and thus there is reluctance amongst the members of the United Nations to issue them. This continues to mean that members of a whole range of United Nations operations remain beyond the protection of the Convention. The Secretary-General argued that it was necessary to adopt a protocol to the Convention, and by means of that protocol to extend protection to all humanitarian organizations, regardless of their affiliation with the UN, and to all UN operations, regardless of whether the declaration on exceptional risk with regard to their personnel has been passed.22 His appeal was effective. On 8 December 2005, the General Assembly adopted an optional protocol, which—regrettably, only to a limited degree—extends the scope of protection under the Convention.23 The application of the Convention under the protocol is only extended to UN operations established for the purposes of:
(a)
Delivering humanitarian, political or development assistance in peacebuilding, or
(b)
Delivering emergency humanitarian assistance.
However, a restriction stipulates that the provisions of the protocol do not allow the application of the Convention to any permanent United Nations office, established under an agreement with the United Nations. Not all humanitarian workers are under the protection either, because the requirement of formal connection between the organization and the UN is still in force. Further doubts may arise out of the wording “emergency humanitarian assistance”: all humanitarian assistance is of an emergency nature as it is one of the criteria that distinguish it from development assistance. Another controversial point is that the protocol allows a host state to make a declaration to the Secretary-General of the United Nations that it is not going to apply the provisions of the protocol with respect to an operation whose purpose is delivering emergency humanitarian assistance and which is conducted for the sole purpose of responding to a natural disaster. Such a declaration must be made prior to the deployment of the operation. This opt-out clause was implemented at the request of China and other developing countries, because they argued that in a situation of a natural disaster there is no risk to the life of helpers, as opposed to a peacebuilding operation. The option of making such a declaration is somewhat surprising. The role of it is either to reinforce the obvious principle of no responsibility of a state in the case of force majeure, if due diligence was observed (which would make it superfluous, but that is frequent in international law), or to offer the state full freedom with regard to the safety of humanitarian workers, which would constitute a complete departure from the general principles of human rights protection. Nonetheless, the wording “for the sole purpose” may support the argumentation that in the cases where both humanitarian and development aid is offered (and it is very difficult to draw a sharp line between the two), the state may not opt out of the applying the Convention.
12.3.2 In Times of Armed Conflict
In times of armed conflict, humanitarian workers continue to be protected by the above-mentioned human rights documents and the special regime of the CSUNAP.24 However, further protection under provisions of international humanitarian law (IHL) also comes into play. These provisions differentiate between international and non-international conflicts, and between various categories of persons offering aid.
In situations of international conflicts, apart from customary law (Henckaerts and Doswald-Beck 2005, pp. 3 ff.),25 the following regulations apply: the four Geneva Conventions of 1949 for the protection of war victims (GC)26 and the first Additional Protocol of 1977 (AP I).27 These legal acts define the category of relief (humanitarian) action, understood as providing food and medical supplies, clothing, bedding, means of shelter or other supplies essential to the survival of the civilian population of a territory under the control of a party to a conflict and objects necessary for religious worship.28 Relief action may be targeted only at protected persons (civilians, but also the sick and wounded, the shipwrecked, prisoners of war) (Stoffels 2004, p. 516)29 and must be conducted in accordance with the following principles. Firstly, it must be humanitarian, i.e. aimed at bringing relief to victims (Pillod et al. 1987, p. 817). There is no differentiation between humanitarian assistance and development assistance in IHL but specific provisions clearly specify that the aid in question must be of a short-term nature and intended to provide emergency relief (Mikos-Skuza 2013, pp. 235 ff.). Thus an organization that implements developmental programmes, e.g. road or school construction, may not obtain consent to operate in the state where aid is being provided, its workers will not be treated as relief staff, and protection awarded to relief personnel will not be extended to them.
Secondly, relief action must be impartial in character and conducted without any adverse distinction. As noted in the ICRC Commentary of 1987, “[t]he ‘impartial’ character of the action may be assumed on the basis of fulfilling the obligation (…) to conduct the action ‘without any adverse distinction’” (Pillod et al. 1987, p. 818). Aid must be provided to the persons who are suffering, and the decision concerning whom to serve first should be based on purely objective criteria, expressed in terms of the needs of the intended recipients of the aid. As the ICRC Commentary points out, “the principle of non-discrimination removes objective distinctions between individuals, while impartiality removes the subjective distinctions.”30
Thirdly, relief actions must be undertaken subject to the agreement of the parties concerned in such relief actions. While the state is essentially obliged to allow relief aid if it is unable to satisfy the basic needs of its population, the aid organizations must nonetheless obtain permission to conduct operations. It is not a requirement under IHL that the entities conduction relief operations must be independent or neutral (Durham and Wynn-Pope 2011, pp. 330–331). Naturally, maintaining an independent or neutral position facilitates access to the victims, but it is a prerequisite neither of the ability to offer and conduct relief action, nor of protection granted to relief personnel. What is more, even if the principles of humanitarianism, impartiality and consent of parties, clearly specified in IHL, are not observed, the persons engaged in relief action do not forfeit the general protection granted to them as civilians, as long as they do not take part in hostilities (Cottier 1999, p. 333).
Relief action typically also involves health care and religious assistance, but IHL treats this type of aid as a separate category, and consequently, more specific provisions (discussed in more detail below) apply to medical and religious personnel than to relief staff.
Health care must be provided without discrimination or adverse distinction.31 Offering medical aid (in line with regulations on relief aid) is not to be considered as interference in the conflict,32 and thus clearly cannot be perceived as taking part in hostilities. Importantly, the fact that personnel of the medical unit can be equipped with light individual weapons for their own defence, or for that of the wounded and sick in their charge, may not be considered harmful to an enemy state.33 Given the above, it must be concluded—in light of the fact that personnel of the medical units may carry light weapons—that they may also definitely use means of protection such as bullet-proof vests or armoured vehicles (ICRC 1998). The first Additional Protocol of 1977 notes that a unit can be guarded by a picket or by sentries or by an escort, and the fact that small arms and ammunition taken from the wounded and sick and not yet handed to the proper service are found in the units, cannot be considered as an act harmful to the enemy.34 A unit may not be deprived of protection solely due to the fact that members of the armed forces or other combatants are in the unit for medical reasons. Even if the personnel engage in actions beyond their humanitarian function which are in fact harmful to the enemy, protection may cease only after a warning has been given, setting (when appropriate) a reasonable time-limit, and after such warning has remained unheeded.35 Under no circumstances may a person carrying out medical activities compatible with medical ethics be punished for such activities, even if those who benefited from those actions were on the adverse side.36
IHL contains no explicit principles that should be observed in offering religious and spiritual assistance (and it is actually difficult even to apply to such assistance the same terminology as to other types of aid). What are the methods of effective verification of whether religious personnel offers assistance without any adverse distinction and impartially, solely for the purpose of providing relief to the victims and being guided only by their needs, without investigating the principles of a specific religion? However, the provisions that require religious personnel to be assigned to either armed forces, medical units, or civil defence organizations indirectly points to the conclusion that also in the case of religious assistance it is necessary to obtain prior permission of the state in whose territory the aid is to be provided.