© Springer International Publishing Switzerland 2015Pat Gibbons and Hans-Joachim Heintze (eds.)The Humanitarian Challenge10.1007/978-3-319-13470-3_8
8. The Legal Framework of Humanitarian Action
Centre for Humanitarian Action, School of Agriculture and Food Science, University College Dublin, Dublin, Ireland
International Services/National Relief Division, German Red Cross – Headquarters, Berlin, Germany
8.1 Introductory Remarks
8.1.1 Mandatory Legal Regulation
In addition to the differing domestic legal regimes international law also provides a legal regime for humanitarian action. The international community has adopted a set of rights and duties, guarantees, warrants and obligations in particular in the area of humanitarian assistance. States have adopted such regulation both directly and specifically as well as indirectly in a broader sense. By way of example, in the case of providing humanitarian assistance in the situation of an international armed conflict “[t]he Parties to the conflict shall protect relief consignments and facilitate their rapid distribution” (Article 70 para. 4 Additional Protocol I—AP I1). In a broader sense, however, the prohibition to make the civilian population as such, as well as individual civilians, the object of attack in an armed conflict2 is an integral part of the legal framework of humanitarian assistance. Relief workers or journalists reporting from an area of armed conflict are civilians under international humanitarian law and enjoy protection as civilian persons in armed conflict.
126.96.36.199 International Legal Personality
Norms of international law evolve from two major3 sources: international treaties and international customary law. In contrast to domestic law, international law does not originate from any form of hierarchically superior sovereign or law-maker. International law is created by those whose behaviour is to be regulated by the law, i.e. States. States create their own law; only those rules which are created by States themselves for themselves are legally binding.
International legal personalities in the humanitarian field form three main traditional groupings. Firstly, States are the only full-fledged subjects of international law (Crawford 2011). They are able to regulate the whole range of their rights and obligations under international law. Statehood criteria as crystallised into customary law are a permanent population; a defined territory; and government together with the capacity to enter into relations with the other States (Crawford 1976, pp. 93–182).4 International legal personality addresses the capacity to possess rights and obligations which directly result from international law and are not mediated through a domestic legal system (Walter 2007). Secondly, there are inter-governmental entities or international organisations like the United Nations, the Organization of American States or the African Union that do not have a fully-fledged legal personality, but a partial one (Schmalenbach 2006). A third group is formed by so-called atypical or traditional subjects of international law (Walter 2007, MN 7), consisting of the Holy See, the Sovereign Order of Malta and the International Committee of the Red Cross (ICRC). These three atypical subjects of international law are neither States nor international organisations; historically, the international community has equipped them with partial legal personality in terms of limited international rights and obligations. The Holy See, for instance, avails itself of the right to exchange diplomatic personnel—“papal nuncio”—with States, whereas the ICRC has the right to visit prisoners of war and civilian internees according to the Third and Fourth Geneva Conventions of 1949.
Beyond these three traditional subjects of law both the international community of States and academia discuss a limited legal personality of third institutions or individuals. This grouping includes a range of stakeholders including: indigenous peoples, insurgents, movements of national liberation, multinational enterprises or individuals (Walter 2007, MN 8–20). The entitlements and obligations of this diverse grouping are the subject of many questions, discussions and debates. Examples of these include whether individuals are actual holders of entitlements under international human rights law or are they able to file a lawsuit on the one hand or whether non-State armed groups like the Taliban or Al Qaeda are bound by international (humanitarian) law. The issues of international rights and duties of private military or security companies or of an international legal right of actors in humanitarian assistance to access to suffering civilian population in a humanitarian situation are further examples. Some clarity has emerged on these issues since the establishment of international criminal law and the institution of international criminal courts from 1993. It is now recognised that individuals do have obligations in terms of crimes against humanity or war crimes. These obligations are derived directly from international law and not imparted by domestic legal systems. In other words, at least in this partial respect, individuals avail themselves of international legal obligations.
188.8.131.52 Sources of International Law
The subjects of international law—generally States—create international law, in particular through concluding international treaties and/or developing international customary law. An international treaty is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”, Article 2 para. 1 lit. a VCLT (Vienna Convention on the Law of Treaties). Regardless of a number of specificities, international treaties have similar effects to contracts in many domestic legal systems, namely: parties concluding a treaty are bound by it and its content. In case of an understanding of provisions differing between the treaty parties, provisions are to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, Article 31 para. 1 of the Vienna Convention on the Law of Treaties (VCLT). Supplementary means of interpretation include the preparatory work of the treaty and the circumstances of its conclusion, Article 32 VCLT. In result, an international treaty is binding only on those States/subjects of international law which have concluded the treaty and have become parties to them.
In contrast to quite a number of domestic legal systems, international customary law is one of the two main sources of international law. It possesses the same legally binding force as treaty law and there is no hierarchy between norms of either source.5 International custom is evidence of a general practice accepted as law, Article 38 para. 1 lit. b ICJ Statute, thus consisting of an objective and a subjective element. First and objectively, the requirement of certain behaviours is to be part of a “general practice” of States and, second and subjectively, has to be “accepted [by States] as law”. This second element determines whether a State accepts a behavioural requirement as legally binding—so-called opinio iuris—or whether it abides by it out of considerations of courtesy, practicability, pragmatisms or “political correctness” without feeling legally bound. The first, objective, element of general practice may consist of either positive action or negative omission. A practice becomes general when it avails itself of a certain level of uniformity, has a certain amount of extension, and is shown to happen over a certain period of time.6
184.108.40.206 Humanitarian Assistance in Armed Conflict and Non-conflict Disasters
The legal regime of humanitarian assistance that emanates from international treaty and customary law differs in its provisions between situations of armed conflict and non-conflict situations. Furthermore, International law distinguishes strictly between humanitarian assistance in international or non-international armed conflicts and in natural or technological disasters. Notwithstanding questions as to whether or to what extent the sovereign equality of States influences and gives distinction to today’s international law, providing humanitarian assistance on the territory of a foreign State invariably impacts the sovereign rights of the State on whose territory assistance is provided. Such provision—as a rule—is dependent on the agreement of the receiving State. This rule is being incorporated both in international treaty and customary law. In doing this, States have created different and distinct legal regimes for conflict and non-conflict situations. Interestingly, the legal regime for situations of armed conflicts is more detailed and more comprehensive than the regime for natural or technological disasters.
8.1.2 Non-legally Binding Rules and Commitments
In addition to legal norms there are non-legally binding regulations and commitments that contribute to forming the framework for the provision of humanitarian assistance. These non-binding rules and commitments aim to harmonise and standardise humanitarian assistance. The so-called ‘principles of humanitarian assistance’ or ‘humanitarian principles’ are of specific relevance in this context. Humanity is the axiomatic principle, complemented by the principles of impartiality, neutrality and independence. As principles, they do not legally bind any actor in humanitarian assistance, but they have emanated from legally binding instruments or have been introduced into legally binding documents. In such cases the principles gain legally binding force through and in the form of the respective instrument, according to the document’s scope of applicability and coverage. For example, the United Nations General Assembly Resolution 46/182 on the Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations7 is not legally binding. However it contains in its annex “Guiding Principles” for UN humanitarian assistance they consider the implementation of the principles of “humanity”, “neutrality” and “impartiality” as being mandatory.8
The so-called ‘humanitarian space’ results from the respect of these principles by all actors concerned in humanitarian assistance. The more such respect is being challenged or principles are violated, the more fragile and restricted becomes the humanitarian space. It is this humanitarian space which enables relief workers to be granted access to an inadequately supplied civilian population and to deliver a needs-based assistance effectively and without being identified with political connotations. Enacting so-called ‘humanitarian corridors’ or ‘humanitarian protection zones’ with a view to enable a civilian population to leave one area and to reach another where they are able to access humanitarian assistance in an environment with minimum guarantees of safety and security for beneficiaries, organisations and relief workers, are examples of measures to secure humanitarian space (von Pilar 2005).9
The notion of a ‘humanitarian imperative’ addresses the commitment of actors in humanitarian action to recognise the right of an inadequately supplied/resourced civilian population to receive assistance and to provide assistance on the basis of the principles of humanitarian assistance. The 1994 Code of Conduct for The International Red Cross and Red Crescent Movement and Non-Governmental Organisations (NGOs) in Disaster Relief (IFRC) explicitly refers to such humanitarian imperative in the first principle of conduct: “The humanitarian imperative comes first”. It describes the “right to receive humanitarian assistance, and to offer it” as a “fundamental humanitarian principle which should be enjoyed by all citizens of all countries. As members of the international community, we recognise our obligation to provide humanitarian assistance wherever it is needed.” The legally non-binding Code of Conduct comprises nine additional principles of conduct which are designated to be accepted by all actors of humanitarian action actors. The Code is based on the principle of impartiality10 and on the commitments not to use aid to further a particular political or religious standpoint and to endeavour not to act as instruments of government foreign policy, to respect culture and custom, and to attempt to build disaster response on local capacities, as well as the commitment to involve programme beneficiaries in the management of relief aid which strives to reduce future vulnerabilities to disaster and meeting basic needs, to be held accountable to both those sought to assist and to those from whom we accept resources are accepted, and finally to recognise disaster victims as dignified humans instead of hopeless objects in information, publicity and advertising activities. It is in this spirit that the Code describes how actors in humanitarian action should organise their relationships to donors,11 Governments of States on whose territory assistance is being provided,12 and International (Governmental) Organisations.13
The Sphere Project’s14 Humanitarian Charter and Minimum Standards in Humanitarian Response, the Principles and Good Practice of Humanitarian Donorship 15 and the European Consensus on Humanitarian Aid16 are further eminent examples of different approaches to standardisation of the principles of humanitarian assistance and commitments of actors.
The Sphere 17 Project is designated to enhance quality control and accountability in the humanitarian system. The Humanitarian Charter is an integral part of this project. It contains the ethical-legal background of protection principles as well as core and minimum standards for the provision of humanitarian assistance. The Charter takes a rights-based approach in that it is based on the right to life with dignity and, therefore, a right to assistance, as well as the right to protection and security. It identifies the following protection principles: “All humanitarian agencies should ensure that their actions do not bring further harm to affected people (1); that their activities benefit in particular those who are most affected and vulnerable (2); that they contribute to protecting affected people from violence and other human rights abuses (3) and that they help affected people recover from abuses (4)”. Core and minimum standards address quality and accountability in the areas of water supply, sanitation and hygiene promotion; food security and nutrition; shelter, settlement and non-food items; and health action. They do so with a view to increase capacity and active participation of those being affected by a disasters, to establish comprehensive analyses and a comprehensive understanding of needs and the context of the disaster, to ensure effective coordination among actors in humanitarian action, to strive for continued improvement of the provision of assistance, as well as to give adequate education and support to relief personnel.
The Principles and Good Practice of Humanitarian Donorship focus on donor institutions. In 2003, Governments of 16 donors as well as the European Commission, OECD, the International Red Cross and Red Crescent Movement, relief organisations and academia adopted a framework of 23 principles and examples of good practice for providing official humanitarian assistance and furthering enhanced accountability of donor institutions to recipients of assistance, implementing organisations and domestic constituencies. The Principles and Good Practice of Humanitarian Donorship explicitly reiterate the “humanitarian principles of humanity, (…); impartiality, (…); neutrality, (…); and independence, (…)” (Principle 2). On the basis of the “primary responsibility of States for the victims of humanitarian emergencies within their own borders” (Principle 5) the authors of the document commit, in particular, to the principles to strive to ensure flexible and timely funding on the basis of the collective obligation to meet humanitarian needs (Principle 5), to allocate humanitarian funding in proportion to needs and on the basis of needs assessment (Principle 6), to strive to ensure that funding in new crises does not adversely affect meeting the humanitarian needs in on-going crises (Principle 11), to request that humanitarian organisations fully adhere to good practice and to promoting accountability, efficiency and effectiveness in implementation (Principle 15), and to support learning and accountability initiatives for the effect and efficient implementation of humanitarian action (Principle 21).
On 18 December 2007, the Presidents of the European Commission, the European Parliament and the Council of the European Union on behalf of the 27 European Union Member States signed the European Consensus on Humanitarian Aid as the first joint political statement of the EU on humanitarian aid. The Consensus aims to improve coordination within the EU, emphasises the aspect of responsible practice of donors, and at the same time highlights the various roles of different actors in humanitarian action. It reiterates that “the ‘humanitarian space’ that is needed to ensure access to vulnerable populations and the safety and security of humanitarian workers must be preserved as essential preconditions for the delivery of humanitarian aid” (para. 3). Member States, the European Commission, the European Parliament and Council affirm their commitment “to upholding and promoting the fundamental humanitarian principles of humanity, neutrality, impartiality and independence” in the context of “humanitarian aid” (para. 10) and is adamant that “EU humanitarian aid is not a crisis management tool” (para. 15). It is to be noted that this determination applies to humanitarian assistance; it does neither apply to development cooperation nor to EU civil protection which on the one hand explicitly is a political tool and on the other hand quite often is deployed in the same contexts and environments as humanitarian assistance.
8.2 The Legal Framework in Armed Conflicts
The legal regime of humanitarian assistance is not only different with regard to humanitarian assistance provision in armed conflict and in natural or technological disasters—it also differentiates between situations of international and non-international armed conflicts. The distinction is particularly evident from treaty law which provides for a rather modest degree of protection and detail in non-international armed conflicts compared to the regime for international ones.
The concept of protecting humanitarian assistance operations on the one hand and personnel on the other hand evolved following different avenues and different logics in international humanitarian law. Whereas the desire to protect relief personnel developed from the idea to equip certain civilian personnel designated to assist the regular medical service of armed forces with respect and protection,18 the concept of a legal obligation to provide an inadequately supplied civilian population with humanitarian assistance results from the legal obligations of an occupying power. The occupation regime under international humanitarian law is based on the recognition of appropriateness that a State, when occupying another State and placing the latter’s territory under its [legal] authority, does not only receive additional powers, but is also faced with additional legal obligations. It is on this basis that the Geneva Conventions of 1949 prescribe these duties to encompass the obligation to ensure “the food and medical supplies of the population” (Article 55 para. 1 GC IV19). The text of GC IV—which is not only universally binding treaty law, but also customary law—qualifies this responsibility as a legal obligation incumbent on the occupying power and broadens it with the duty to agree to and to facilitate relief schemes by third actors in case it is not in a position to bring in the necessary supplies (Article 59 para. 1 GC IV).
The exceptionality of this regulation is underpinned by the fact that the prohibition of starvation of the civilian population has been introduced in treaty law only in 1977 (Article 54 Additional Protocol I—AP I20). So-called hunger blockades were not only common, but also not prohibited by treaty law. Whereas Article 11 of the Convention Relative to the Treatment of Prisoners of War of 1929 already contained a legal obligation of a detaining power to provide prisoners of war with food and water, the first protection for civilian persons was introduced by GC IV in 1949. The recognition of an occupying power’s legal obligation to provide an inadequately supplied civilian population on occupied territory was complemented by AP I, recognising that humanitarian assistance was actually increasingly provided by non-governmental organisations and in situations of international armed conflict beyond and outside occupied territory. Article 70 AP I contains a balanced system of rights and duties of parties to an international armed conflict, actors of humanitarian assistance and the civilian populations.
8.2.1 The Provision of Humanitarian Assistance in International Armed Conflicts Outside Occupied Territory
In terms of treaty law, the legal framework for humanitarian assistance in international armed conflict on other than occupied territory is generally set by Article 70 AP I on protection of the operation and Article 71 AP I on protection of personnel.
Article 70 para. 1 lists three requirements for ensuing obligations: the civilian population has to be “not adequately provided”, relief actions need to be “humanitarian” and they must be “impartial in character and conducted without any adverse distinction”.21 The legal description of an adequate provision of the civilian population is vague, if not non-existent. The wording of Article 70 para. 1 is quite limited and only refers to “food and medical supplies” as well as “clothing, bedding means of shelter” and “other supplies essential to the survival of the civilian population (…) and objects necessary for religious worship”.22 It is agreed in both State practice and academia that this restriction is irrelevant in today’s legal regime.23 The ‘list of humanitarian goods’ is not closed. The real question is how to assess what level of provision is “not adequate” for the civilian population.
There is unanimous agreement that the legal framework only applies to ‘humanitarian’ assistance and thus presupposes some kind of ‘humanitarian situation’, and that such a humanitarian situation is to be qualified on the basis of a factual assessment of needs and urgency. The wording of Article 70 para. 1 itself requires relief actions to be “humanitarian”; i.e. to be designated only for the survival of the civilian population or its facilitation. Humanitarian assistance is intended to assist the civilian population in need: “The ‘humanitarian’ character of the action is fulfilled once it is clear that the action is aimed at bringing relief to victims, i.e., in the present case, the civilian population lacking essential supplies. What matters most of all is to avoid deception, that is to say, using the relief action for other purposes.”24
The requirement of impartiality of the assistance is twofold: Article 70 para. 1 requires assistance to be “impartial in character and conducted without any adverse distinction”. Impartiality of humanitarian assistance in international humanitarian law is defined as prohibition and imperative: the prohibition to distinguish with regard to nationality, race, religious belief, social state, and political conviction on the one hand; and the imperative to assist human beings on the basis of need alone on the other hand. The operation is to be conducted in an impartial manner, in other words to be guided by humanitarian needs alone. It is further to be conducted without any adverse distinction, i.e. not diverted or proved in a way favouring certain groups or individuals out of political discriminatory or personal preferences. The criterion “without any adverse distinction” is referred to as the principle of non-discrimination and results from the philosophical concept of the equality of human beings, which is actually a basic consequence of the principle of humanity.25 Whereas impartiality looks at the person or institution providing the assistance, non-discrimination focuses on the one receiving it. The principle of non-discrimination removes objective distinctions between individuals, while impartiality removes the subjective distinctions.26 Relief operations need to address the humanitarian need only and are neither diverted nor implemented in a way which disadvantages a person on reasons other than humanitarian need and urgency.
For the law of armed conflict, Article 70 AP I is the legal embodiment of two out of four of the so-called “humanitarian principles”. For international humanitarian law, “humanitarian” and “impartial” are mandatory criteria for humanitarian assistance operations to be protected by humanitarian law. The principles of neutrality and independence are—consequently—not mentioned as prerequisites for the legal obligation to respect and protect a relief operation. ‘Neutrality’ is a distinct principle in the context of the laws of war (Bothe 2011), entailing very specific rights and duties in the context of international armed conflicts and being applicable to States only. ‘Independence’ is somewhat irrelevant in the legal framework of armed conflict, as international humanitarian law looks at States as being the first and ‘natural’ actors of humanitarian action in armed conflict (Spieker 2010). Consequently, the ideal of non-governmental humanitarian actors to be independent from Governments is not at the forefront of legal regulation and not a precondition for protection provided by the laws of war.
Article 70 para. 1 provides that in situations where these three criteria are fulfilled, “relief actions (…) shall be undertaken”. Since the adoption of Additional Protocol I and in particular since the 1990s, the degree to which this regulation is mandatory is regularly discussed both in state practice and in academia. The wording emphasises the sovereign rights of the State on whose territory the operation is being conducted27 in that it maintains its agreement as precondition for lawfulness: “(…) shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”. Unlike the occupation regime where the provision of a civilian population that is inadequately supplied/resourced is a straight legal obligation, in international armed conflicts outside occupied territory the provision of humanitarian assistance is subject to the agreement of the party to the conflict on whose territory the population is in need. The precondition of agreement of the recipient State is reiterated in customary law: “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.”28 Today it seems to be generally accepted that the State on whose territory the assistance is to be provided is legally obliged to give the agreement—regardless of who is going to assist—provided the above mentioned criteria are fulfilled. This regulation balances the interests of a suffering civilian population on the one hand and those of the recipient State on the other. Once the receiving State has given its agreement, it is legally obliged to protect relief actions and to facilitate rapid distribution of items, Article 70 para. 4 AP I and Rule 55 CILS.
It is still a matter of debate whether an agreement which is lacking or withheld may be substituted or overcome in any way. The question is whether the existing international—treaty or customary—law provides for a “right to access” to an inadequately supplied civilian population.29 Such a right to access could allow providing humanitarian assistance without the agreement, possibly against the explicit will of the recipient State (Spieker 2010).30 This discussion has been reinforced by the debate on the concept of human security and the development of a concept of responsibility to protect. In sum, to date treaty and customary law remain adamant on the requirement for agreement and have not been changed; existing international law does not provide for a ‘right to access’ without or against the will of the recipient State.
Upon agreement to humanitarian assistance being provided to a civilian population, the recipient State is legally obliged to protect the relief operation and to facilitate the rapid distribution of goods (Article 70 para. 4 AP I and Rule 55 CILS). All States concerned, including States which are not Parties to the conflict, are obliged to allow and facilitate rapid and unimpeded passage of goods, equipment and personnel (Article 70 para. 2 AP I and Rule 55 CILS). As within the regime for assistance on occupied territory, these legal obligations of both the recipient State and all States concerned are balanced by control rights, as e. g. in terms of schedules, routes, packaging or security regulations (Article 70 para. 3 and Rule 55 CILS).
In international humanitarian law relief, personnel are protected as the civilian population and individual civilians. As a rule and as such—and surprising to quite a number of relief workers—privileges and immunities are not part of this protection unless they are agreed with the States concerned on a quasi bilateral basis. Such agreement may be done either in more general terms, as e.g. for delegates of the International Committee of the Red Cross and Red Crescent or personnel of missions of the United Nations, or on an ad hoc basis. In international armed conflicts, relief personnel are protected by Article 71 AP I which has crystallised into customary law.31 According to Article 71, para. 1, relief personnel “may form part of the assistance” “where necessary”. Both the regulation as such and the restriction on the basis of necessity are due to the general and often apparent reluctance of States in accepting foreign individuals on their territory, particularly those individuals having the legal status of tourists, but not acting like tourists. The wording of paragraph 1 explicitly reiterates the precondition of consent of the State on whose territory the personnel is to be deployed.32
Paragraph 2 of Article 71 contains the legal obligation of Parties concerned to respect and protect relief personnel. Parties are obliged to exempt relief personnel from attacks and to ensure that personnel are not particularly exposed to the effects of armed conflict. This duty generally extends to actively protect personnel in general terms; protection from specific circumstances or behaviour is not specified. Such specification is neither contained in treaty nor in customary law. In addition to the obligation to respect and protect, a State receiving assistance has the duty to “assist the relief personnel (…) in carrying out their relief mission”.33 This duty is limited by “the fullest extent practicable”; yet, on the other hand, activities of personnel and their freedom of movement are generally guaranteed and may only be restricted by “imperative military necessity”. Any restriction itself is limited to temporary measures. In the practice of humanitarian action it is often difficult to distinguish between a lawful restriction of the activities of relief personnel on the one hand and unlawful impediment on the other hand. A distinction may only be made with regard to the actual relevant circumstances on a case-by-case basis.