Abstract
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 I). 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 conflict 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.
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Notes
- 1.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; 1125 U.N.T.S. 3; entry into force 7 December 1978.
- 2.
Article 51 para. 2 AP I: “The civilian population as such, as well as individual civilians, shall not bet he object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
- 3.
Article 38 para. 1 of the Statute of the International Court of Justice lists the following sources of international law: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilized nations; and d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law; http://www.icj-cij.org/documents/?p1=4&p2=2&p3=0, accessed 23 June 2013.
- 4.
http://www.britannica.com/EBchecked/topic/291011/international-law/233502/Other-sources#toc233505, accessed 6 October 2014.
- 5.
See Article 38 para. 1 Statute of the International Court of Justice—ICJ, 1945; http://www.icj-cij.org/documents/?p1=4&p2=2&p3=0, accessed 1 July 2013.
- 6.
ICJ, North Sea Continental Shelf (Federal Republic of Germany/Netherlands); Proceedings joined with North Sea Continental Shelf (Federal Republic of Germany/Denmark) on 26 April 1968; paras. 60–82.
- 7.
A/RES/46/182 of 19 December 1991. http://www.un.org/documents/ga/res/46/a46r182.htm. Accessed 02 November 2012.
- 8.
A/RES/46/182: “2. Humanitarian Assistance must be provided in accordance with the principles of humanity, neutrality and impartiality.”
- 9.
In a more comprehensive way “humanitarian space” means safeguarding unimpeded access to an inadequately supplied population, unimpeded evaluation of the actual needs of this population, an implementing actor’s control of his programmes and projects, as well as independent analysis and assessment of the effects of programmes and projects.
- 10.
“Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone.”
- 11.
“1. Donor governments should recognise and respect the independent, humanitarian and impartial actions of Non-Governmental Humanitarian Agencies (NGHAs); 2. Donor governments should provide funding with a guarantee of operational independence; 3. Donor governments should use their good offices to assist NGHAs in obtaining access to disaster victims.”
- 12.
“1. Governments should recognise and respect the independent, humanitarian and impartial actions of Non-Governmental Humanitarian Agencies (NGHAs); 2. Host governments should facilitate rapid access to victims for (NGHAs); 3. Governments should facilitate the timely flow of relief goods and information during disasters; 4. Governments should seek to provide a coordinated disaster information and planning service; 5. Disaster relief in the event of armed conflict.”
- 13.
“1. Inter-Governmental Organisations (IGOs) should recognise Non-Governmental Humanitarian Agencies (NGHAs), local and foreign, as valuable partners; 2. IGOs should assist host governments in providing an overall coordinating framework for international and local disaster relief; 3. IGOs should extend security protection provided for UN organisations to NGHAs; 4. IGOs should provide NGHAs with the same access to relevant information as is granted to UN organisations.”
- 14.
http://www.sphereproject.org/, accessed 20 October 2012.
- 15.
http://www.goodhumanitariandonorship.org/gns/principles-good-practice-ghd/overview.aspx. Accessed 29 October 2012.
- 16.
Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission (2008/C 25/01); http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:025:0001:0012:EN:PDF, accessed 27 July 2013.
- 17.
‘Sphere’ was initiated in 1997 by a group of NGOs and the International Red Cross and Red Crescent Movement to develop a set of universal minimum standards in core areas of humanitarian response and first published in 2000, revised in 2003 and 2009–2010. The aim of the Handbook is to improve the quality of humanitarian response in situations of disaster and conflict, and to enhance the accountability of the humanitarian system to disaster-affected people.
- 18.
Geneva Convention (I)—GC I—for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949; Article 24: “Medical personnel exclusively engaged in the (…) treatment of the wounded or sick, (…) shall be respected and protected in all circumstances” and Article 26 para. 1: “The staff of National Red Cross Societies and that of other voluntary Aid Societies, duly recognized and authorized by their Governments, who may be employed on the same duties as the personnel named in Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff of such societies are subject to military laws and regulations.”
- 19.
Geneva Convention (IV)—GC IV—Relative to the Protection of Civilian Persons in Time of War, 12 August 1949.
- 20.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Armed Conflicts (Protocol I), 8 June 1977.
- 21.
Article 70 AP I.
1. If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mention in Article 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts (…).
See also, Rule 55 CIL Study.
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.
- 22.
Article 70 para. 1 and Article 69 para. 1 AP I.
- 23.
See Sandoz et al. (1987) Article 70 No 2794.
- 24.
Ibid. No 2798.
- 25.
Ibid. No 2800.
- 26.
Ibid.
- 27.
In the following referred to as ‘recipient State’.
- 28.
Rule 55 CILS (Customary International Law Study; http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule55. Accessed 29 July 2013.
- 29.
See the equivalent discussion on a ‘right to humanitarian intervention’, ‘droit d’intervention’ and ‘droit d’ingérence’.
- 30.
On debates of a right to access as well as on a ‘right to receive’ assistance and a legal obligation to provide assistance.
- 31.
Rule 31 CILS: “Humanitarian relief personnel must be respected and protected”; ICRC Customary Law Study.
- 32.
“(…); the participation of such personnel shall be subject to the approval of the Party in whose territory they will carry out their duties.”
- 33.
See also Rule 56 CILS: “The parties to the conflict must ensure the freedom of movement of authorised humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted.”
- 34.
“The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.
- 35.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
- 36.
Article 1 para. 1 AP II: “This Protocol (…) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
- 37.
Cf. Rule 10 CILS: “Civilian objects are protected against attack, unless and for such time as they are military objectives.”
- 38.
See the list of items contained in the IDRL Database.
- 39.
Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations; 18 June 1998; http://www.itu.int/ITU-D/emergencytelecoms/Tampere_convention.pdf; accessed 31 October 2012.
- 40.
Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency of 26 September 1986; http://www.iaea.org/Publications/Documents/Conventions/cacnare.html, accessed 2 November 2012.
- 41.
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:en:PDF, accessed 2 November 2012.
- 42.
Already the second International Conference of the Red Cross in 1869 appealed to National Red Cross Societies to provide assistance “in case of public calamity which, like war, demands immediate and organized assistance”; The first Statues of the International Red Cross and Red Crescent Movement in 1928 codified such assistance as part of the mandate of National Societies.
- 43.
A/RES/46/182: “2. Humanitarian Assistance must be provided in accordance with the principles of humanity, neutrality and impartiality.”
- 44.
Ibid. para. 3.
- 45.
Ibid. para. 4.
- 46.
Ibid. para. 6.
- 47.
Ibid. para. 5.
- 48.
Ibid. para. 6.
- 49.
Ibid. para. 7.
- 50.
Framework Convention on Civil Defence Assistance of 22 May 2000; Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations; 18 June 1998; http://www.itu.int/ITU-D/emergencytelecoms/Tampere_convention.pdf, accessed 31 October 2012; Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency of 26 September 1986; http://www.iaea.org/Publications/Documents/Conventions/cacnare.html, accessed 2 November 2012.
- 51.
28th International Conference of the Red Cross and Red Crescent, 2003; Resolution 1. Agenda for Humanitarian Action. Final Goal 3.2. http://www.icrc.org/eng/resources/documents/resolution/28-international-conference-resolution-1-2003.htm. Accessed 3 November 2012.
- 52.
30th International Conference of the Red Cross and Red Crescent, 2007; Resolution 4 and Annex. http://www.icrc.org/eng/resources/documents/resolution/30-international-conference-resolution-4-2007.htm, accessed 03 November 2012.
- 53.
“These Guidelines are non-binding. (…) the Guidelines do not have a direct effect on any existing rights or obligations under domestic law”.
- 54.
Reversely it is the responsibility of the affected State to make available adequate information about domestic laws and regulations of particular relevance to the entry and operation of disaster relief and initial recovery assistance (10.3).
- 55.
Guideline 2.9 defines an “assisting State” as a State providing disaster relief or initial recovery assistance, “whether through civil or military components”.
- 56.
With a view to assisting States, originating, transit and affected State are simply encouraged to grant those facilities: “It is recommended that transit and affected States grant, at a minimum, the legal facilities described in Part V [i.e. Guidelines 16–24] to assisting States with respect to their disaster relief or initial recovery assistance” (Guideline 13).
- 57.
IDRL Guidelines, preambula to Part V.
- 58.
Linking relief, rehabilitation, and development.
- 59.
See above point 8.2.1 para. 7.
- 60.
“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”; Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946; http://www.who.int/about/definition/en/print.html, accessed 21 August 2013.
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Spieker, H. (2015). The Legal Framework of Humanitarian Action. In: Gibbons, P., Heintze, HJ. (eds) The Humanitarian Challenge. Springer, Cham. https://doi.org/10.1007/978-3-319-13470-3_8
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