The principles of international humanitarian law

we will address first the practical aspects of humanitarian principles we will look at words the origins are what is the definition of these principles and more importantly what is the the used finality and the function of those principles including as much as possible from a very operational perspective we will will have with the participants an exercise looking at some ethical dilemmas that humanitarian organizations can face and regularly face on the ground and with the participants will look at how those human attend principles can help humanitarian organizations to address and overcome those dynamize of challenges that they inevitably face on the ground I'm going to inject the legal dimension into the conversation I'm going to start off by explaining the interplay between humanitarian principles and international humanitarian law highlighting who the principles are addressed to who international humanitarian law is addressed to and also identify the sources of the humanitarian principles and instances in which they are specifically referred to in international humanitarian law in the second part of my presentation I am going to outline the law regulating one specific type of humanitarian action relief operations and situations of armed conflict and I'm going to try and focus on two salient issues the question of consent whose consent is required before relief operations may be carried out and secondly the circumstances in which such consent may not be with the human intern principals what we call the core humanitarian principles guiding humanitarian action are for its humanity impartiality neutrality and independence and that we'll get into more details on this in a minute but I wanted to highlight an important difference between the fundamental principles of the Red Cross and Red Crescent movement and the humanitarian principles the fundamental principles of the Red Cross and Red Crescent are seven there were adopted in 1965 I will get back to it and they deeply influenced the rest of the humanitarian sector and indeed they were adopted later on as those four principles guiding humanitarian action the difference is that we have those three additional principles within the Red Cross and Red Crescent movement of voluntary service unity and universality and I will get back to this in a second but before that if you want about the origin of the of the principles those humanitarian principles were I mean first appeared in in substance on the best the battlefield of Solferino in 1859 which as you know marks the the the origin and the creation of the of the Red Cross and later on the Red Cross and Red Crescent movement when all we do know arriving and on the battlefield of Solferino saying like modern tens of thousands of people of soldiers wounded on the battlefield decided to mobilize people in the surrounding villages in this area of northern Italy to come to to the help of the wanted soldiers and to do that without any discrimination regardless of the of the side of the of the soldiers and that and that's the very origin of this very important principle of impartiality which in a sense is about non-discrimination in the way we provide relief it's only more than one century later really that those principles were formalized as we know them today in 1965 at the 20th International Conference of the Red Cross and Red Crescent Movement held in Vienna the seven fundamental principles of the Red Cross that I have mentioned before well formally adopted however they didn't come out of the blue all of a sudden in 1965 as I said the first appeared somehow under the battlefield of Solferino but there were also the crystallization of one century of operational practice of field experience of the ICRC and the broader Red Cross and Red Crescent Movement afterward in in 1991 through UN General Assembly resolution 46 182 those principles the first four principles of humanity the first three principles actually of humanity impartiality and neutrality were consecrated or recognized in this resolution of the unit the UN General Assembly has the principles that should guide humanitarian action and in 2003 through resolution 58 158 1 1 for the principles of Independence was added to those three principles that were first recognized in 1991 and throughout the 1990s and then later in the 2000s those principles were increasingly recognized and embraced by the broader humanitarian sector NGOs UN through the adoption of a number of codes of conduct NGO chattels that embedded those given return principles in the policy and practice of humanitarian actors and to mention but when I can mention the cred of conduct for the International Red Cross and Red Crescent Movement and NGOs in disaster relief which is signed by more than 500 nongovernmental organizations which really embed those those principles just for humanitarian principles and in the 2000s a number of regional organizations have also recognized those principles in their own policy documents such as the European consensus on humanitarian aid which was adopted in 2008 the Eco was given it and policy that was adopted a few years back that also recognized the importance of those principles and so on and so forth I I could mention some others but those are two that illustrate my my point let's get to the definition of of these principles first I'm I like to when introducing the the principles to show this pyramid that represents the seven fundamental principles of the of the Red Cross and not only the four core humanitarian principles as we know them because that's the the way we understand these principles within the movement and we like to represent them through this pyramid because it gives the it reflects this notion of hierarchy within the principles all the principles are not do not have the same finality or the principles do not have the same value even though they are deeply interlinked and they should be used as a whole and basically I will stand up your humanity and impartiality was described by John picked a whom you know well because of the work he did on the the commentaries of of the Geneva Conventions so Peter also commented those principles of the of the Red Cross and they said that humanity and impartiality are what he called substantive principles meaning they they belong to the domain to the real method of goals this is the very essence of a humanitarian action this is what we aim for then neutrality and apparent independence have a different character there are tools down operational tools for action that enable impartial humanitarian action which is our goal and then those three principles of voluntary service unity and universality that are unique to the to the movement the way that at least understood within the movement institutional in character the provide the institutional foundations within the movement to enable the application of the other principles just one example is unity the the way we understand unity within the movement is that that would be one National Society per country it should be open to all and it should cover the entirety of the of the territory and this is not the condition but it certainly facilitate enabled national societies to deliver impartial aid throughout the territory and by reflecting the diversity of the population ethnic religious cultural social it also arguably enable them to remain neutral or perceived as neutral should the situation deteriorate and the conflict break out in a given country now let's get to to each principle relatively briefly but still humanity the essential principle of humanitarian action it's really the it set the purpose the sole purpose of humanitarian action which is to prevent an alleviate suffering of people affected by humanitarian crisis but also to protect life an antral respect for human dignity there are three important aspects that can be drawn from it first Dominator represented it represents a deep belief in the sacredness of human life and the Equality of human beings so a corollary of this this principle is the idea of non-discrimination that however I have already mentioned in reference to twist welfare we know then in our understanding of the principle of humanity within at least DSRC it requires to work really in proximity with with the people we are solving with the people we we the people affected by crisis to develop a human relationship with them because it's more than delivering just assistance it's indeed about respecting their dignity their for having this human relationship with them being able to to listen to the concerns to understand the situation and to try to bring a sports that is adapted but also also culturally adapted and then the last important point is that human interaction encompasses not only assistance material assistance health food shelter but also protection activities ensuring that people's rights and/or IHL and/or international human rights law refugee law and so on and so forth is respected impartiality as I said impartiality is still a substantive principle it still belongs to the domain of of goals and it's kind of corollary to the principle of humanity indeed this idea of non-discrimination which is one of the components of the principle of impartiality is is key and is an integral part of this idea of of humanity and it is to non-discrimination means to make sure that relief action will be given delivered regardless of the the the political sympathies of people regardless of the race of the of the sight they belong to the religion dub gender and so on and so forth and aid should be based only on nibs on an objective assessment of needs which is this principle of proportionate proportionality it should be delivered based on the urgency and the severity of needs and then a third component of impartiality is the exclusion of personal bias it means that as an individual relief worker you have to put aside maybe your your personal feeling toward one individual because it's a member of your families your cuisine or because it's part of your same ethnic group but really try to address the needs only based on the proportionality of the needs and without any other discrimination then we get we get in the domain of mins means to an end operational tools neutrality though we're neutral it is defined within the Red Cross Red Crescent movement it starts with this phrase in order to continue to enjoy the confidence of all so here we see that neutrality is almost utilitarian the finality is to gain the trust of people the confidence of people that enable us to deliver impartial humanitarian aid it has two main aspects one is military neutrality which is not taking sides austerities but also making sure that the aid we provide doesn't support even inadvertently as much as possible any parties to a conflict and then there is the notion of the D aspect of ideological and religious neutrality which is to abstain to engage in in controversies of religious political nature to make sure that we do not antagonize any side but also any segment of the of the population in order to continue to enjoy the confidence of all and to enable us to to work on the field in proximity with the people and the corollary to neutrality is independence and independence is about maintaining the autonomy from any parties to any third party in a given conflict political economic or or military interests of any party in a given conflict that includes in the icrc practice and in the red cross word Christian practice to maintain some autonomy from the United Nations for instance in some context where the United Nations are deeply politically involved given the mandate given by the UN Security Council for instance it it involves maintaining some autonomy from our donors institutional donors States and that result in our insistence from stance to to get known earmarked and marked funding so that will remain autonomous in the way we direct the assistance and protection that that we deliver I realize that time is running so I will try to move on a bit more quickly to the function of the principle the finality of those principles as I mentioned those humanitarian principles provide both an ethical and an operational framework for humanitarian action humanity and impartiality provide this moral compass whereas neutrality and independence are really about enabling us in the field given the the actual circumstances we operate in and given the the politics of the situations in which we want to navigate those complexities and to deliver this impartial aid and indeed the neutrality and independence as mentioned before are really made made to ensure acceptance by all and this is the the foundation for this acceptance based access and approach to humanitarian action by working on the perception of people by ensuring that we are seen and perceived as neutral and independent from any political or economic stakes we ensure the acceptance of the authorities of arms couriers of the communities themselves which itself is necessary to gain access not always enough but certainly a precondition to to get access and that enable action that is relevant to the to the people so by being by working folk symmetry with the people which is itself by making sure the DEA and the programs that we deliver are relevant to the people it it affects also positively the perception and then you have this kind of virtuous circle and for this dialogue is critical and dialogue with all parties concerned including non-state armed groups and for this it is important that in the first place were seen as neutral and independent to have access to those to those different armed groups main governmental non-governmental and also I mean but disability to to have dialogue can be affected by from stance counterterrorism measures or policies that would restrict the ability of humanitarian organizations to to have a dialogue and to engage with those different groups the operational relevance of those principles and here we're talking about the humanitarian support we talk about humanity impartiality neutrality and independence and as far as the movement is concerned we have three other principles that formed that are part of those seven fundamental principles of the International Red Cross and Red Crescent movement but focusing on those four core principles that I just mentioned the operational relevance is huge because they both provide calculate a moral compass for humanitarian action that's the they represent the motivation behind humanitarian action the objective of human in human interaction which is to alleviate suffering and to protect life and respect dignity of people affected by crises and to do so in a non-discriminatory manner meaning regardless of the race the religion the political allegiance or the gender but only based on the needs so those aspects those fundamental aspects that give the compass for humanitarian action are encapsulated in the principles of humanity and impartiality then we come to the other principles of neutrality and independence that are much more operational in nature the d'arnot ends in themselves that goals their means to an end means to implement impartial humanitarian action even in some of the most complex polarized situations of conflicts of today's conflict and under remain as relevant as ever because indeed it's by being perceived as neutral from all parties to conflict by abstaining to engage in controversies of neither illogical or religious natural that we managed to men maintain the trust after of the people of the parties to a conflict battles of the communities themselves that enable us to to work in proximity with them and it's by being perceived as independent from other political or even economic security or military agendas that we can also ensure distrust and this acceptance which is the very condition to deliver impartial humanitarian aid I'm going to just try and set the scene a bit in terms of the interplay between humanitarian principles and international humanitarian law it's something that's extremely important to understand but also frequently confused and let's start with basic let's kick off by trying to agree on what they are i HL as you know is the body of rules applicable in times of armed conflict that regulates means a method of warfare protects those not or no longer taking direct part in hostilities it's directly binding on States and organized armed groups humanitarian principles as Jeremy just pointed out provide guidance to those who wish to carry out humanitarian activity via protection or assistance in times of armed conflict they're not binding and they're addressed to those who want to carry out relief activities what do the humanitarian principles aim to do as Jeremy pointed out I see essentially two purposes first promote a way of operating that provides assurance to parties to an armed conflict that humanitarian activities do not interfere in the conflict or provide an advantage to their opponent compliance with humanitarian principles makes it more likely that operations are going to be accepted by everyone and that they can be carried out in a manner that is unimpeded and also safe safe for those carrying them out and safe for the beneficiaries the second objective of the humanitarian principles is to ensure that beneficiaries received the assistance they need in a manner that is not discriminatory and that reaches those most in need principle of impartiality so this is what they are word humanitarian in both of them but they're different things with different purposes now let's look at them a little more closely and I find that there are two points that really help understand the interplay between IHL and humanitarian principles who they're addressed to and what their sources are so who are they addressed to IHL principally to parties to an armed conflict to States and to organized armed groups humanitarian principles to those wishing to carry out humanitarian action this seems pretty evident but it's often confused now if we look at some of the instruments that Jeremy just mentioned we're going to have confirmation of this so for example the proclamation of 65 sets out the fundamental principles on which red cross action is based are you the action of the components of the movements the I see I'll see the federation and national societies similarly within the united nations context General Assembly resolution 46 182 lays down the framework for strengthening and coordinating emergency humanitarian assistance of the UN states that humanitarian assistance must be provided in accordance with the principles of humanity neutrality and impartiality so we have a resolution a General Assembly resolution adopted by States but it's not about how states must behave it's about the behavior of those who want to provide humanitarian assistance we're running a bit late I had a number of examples of how the Security Council has addressed humanitarian principles and it's interesting to see cuz as is the case on a number of other issues the Aiea the Security Council is not consistence in the terminology it uses and often actually doesn't get things right in relation to humanitarian principles and calls upon State Parties to comply with them I won't go through them now but perhaps we can go through them later so as I said the principles are addressed to those who want to carry out humanitarian action it's inaccurate and makes no sense to ask parties to an armed conflict to comply with humanitarian principles they have to comply with their obligations under IHL in times of armed conflict but it's not incumbent upon partisan armed conflict to comply with the humanitarian principles however they must not prevent those carrying out humanitarian action from doing so in a principled manner that's the role of parties to an armed conflict visa vie the humanitarian principles don't prevent humanitarian actors from operating in a principled manner admittedly some of the same values underlying humanitarian principles also underlies some of the obligations of parties to an armed conflict and you'll have seen the words I'm thinking in particular of humanity and non-discrimination these are words concepts that we find in international humanitarian law and also in human rights law and also in refugee law but this doesn't mean that the parties for armed conflict must comply with humanitarian principles IHL is not the source of the principles rather I think it's an indication of the importance of these values in times of armed conflict and how it is incumbent on a range of different actors to respect them in different ways so it's for those carrying out humanitarian action who should comply with the principles for the operational reasons we discussed earlier because it makes it more likely that they'll be allowed to operate in a manner that is safe and unimpeded why do I say should because the principles are not binding or at least not binding per se and why do I say better per se this takes me to my second point which is the source of the humanitarian principles and all too frequently there's an assumption that the source of the principles is international humanitarian law and this is not correct as Jeremy has just pointed out as far as the components of the Red Cross Red Crescent movements are concerned the funder the fundamental principles were proclaimed by the Red Cross conference in 65 the components of the movement must comply with these principles as a matter of internal movement obligations that's why they're binding of them and act in accordance with them however the conference itself is not the source of the principles we actually had an interesting conversation as to why this proclamation why this strange term why didn't it just adopt the principles it definitely laid down definitions of the principles that have been used since then by the movement and also beyond but it wasn't the source of the principles in fact as Jeremy also pointed out some of the fundamental principles were in fact already referred to in the Geneva Convention so 49 so while the Geneva Conventions the additional protocols are not the source of the principles they do refer to them and at the moment I'm an academic I have time to do things like word searches things that I'd love to do in my office job back pants so I did a word search of the Geneva Conventions and the additional protocols to see which of the fundamental principles came up and neutrality comes up but in essentially in dealing with states that are not parties to the armed conflict independence does not come up at all but it is humanity slash humanitarian and impartial that are the principles that you ought that also appear in in IHL and when do we see these terms when IHL instruments identify particular tasks particular activities that may be carried out by actors that operate in accordance for these with these principles and for the most part but not exclusively they relate to relief operations so just one example article 59 of the Fourth Geneva Convention on relief operations in situations of occupation States and I'm paraphrasing I'm paraphrasing states that if the whole a part of the population of an occupied territory is inadequately surprised the occupying power shall agree to relief schemes carried out by impartial humanitarian organizations so that's where we have a reference in IHL to the principles and there's a number of other ones I won't go into them now article 70 of Additional Protocol one article 18 - of additional protocol - I'll come to these later and common article 3 which is actually broader in nature because it foresees the possibility of offers of services more broadly so assistance and protection being made by an impartial humanitarian body such as the ICRC so another reference in IHL to the principles so if we go back I have two minutes one minute and a half and if we go back to my initial question are they binding what are the consequences of not complying with principles as a matter of law well an actor that doesn't comply with the principles doesn't benefit from the provisions in question and so here's one example article 70 of Additional Protocol 1 provides that if the civilian population is not adequately provided with certain essential surprise relief actions that are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken so what does this mean it means even if we're in a circumstance where there is a situation where there are civilians whose needs are not met the rules requiring parties to accept offers only come into play in relation to offers coming from parties that operate in a principled manner if you if a humanitarian actor does not operate in a principled manner in a manner that is humanitarian and impartial the state does not need to consider its offer of services so that's a bit the interplay between principals and IHL operating in a principled manner opens the door to specific provisions of IHL for those actors that operate in a principled manner who decides whether an actor operates in a principled manner good question it is essentially the party to whom the offers are made on what basis past practice definitely not lip service afternoon and thank you very much for the presentations this might sound somewhat heretical to a question to pose at the Red Cross here in Geneva but I was just wondering how negotiable the principles are ok the humanity and partiality very much fundamental is there a possibility at all to add an additional principle I'm asking this question because the consultations here last week ahead of the world humanitarian summit in May next year and one proposal was to introduce a principle of subsidiarity which was heavily criticized by many but I was just wondering about how flexible that the principles are in that regard whether it's a need for that recognition of that particular principle and my second question was so yeah I'd love to hear more about how the Security Council has understood or misunderstood thank you it's interesting we were actually at a meeting last week also on the principles and that very point about subsidiarity came up and I think we should go back to Jeremy's pyramid there because we've got three things that I think really are fundamental principles that that the way we act and the art that set out the values and then to me subsidiarity where does it fit into that that particular pyramid it's a way of operating and we mustn't confuse things there's a lot of operating modalities that we can agree would be useful in a particular context across the board if we all agreed to them but I don't think that they are at the same level as the actual humanitarian principles of humanity impartiality neutrality and independence they're much more operational in practice in nature I don't know if you want to add to that while I look for my Security Council language yes just adding on the other negotiable can we add some principles to it and subsidiarity clearly I mean those seven fundamental principles as I said it's a set of principles that bind movement components and and definitely in that regard we we think that I mean there remain relevant we carried out a number of a workshop within the international movement dis euro and the anonymous conclusion was that well that there is no need to touch them we just need to always and the able to better apply them but then the those principles have a certain flexibility as well as I said it's no Dogma except maybe humanity and impartiality that is really the bottom line and I will dare to say that it's the we see this as the the bottom line for human interaction if you do not satisfy the principles of humanity and impartiality then you are not humanitarian I would love to say however neutrality and independence are more as I said as I said tools and afford are circumstances in which there may be less critical to respect strictly like in a natural disaster when military might be the only one able to provide enough planes or like heavy heavy you know whatever infrastructures to to address the denise what's the point not working with them yet we need to maintain consistency and our number of natural disasters that happen in situations where there is also conflict so it's not always easy but a non subsidiarity may be one last very quick point the the way it was proposed in the in the context of the the world humanitarian summit it was just to remind everybody that maybe if there is something missing in those four core humanity on principles it's this kind of institutional foundation that we have within the movement hence the idea of suicidality I don't know whether it's a good idea or bad idea but it was to say well we should recognize that within human interaction some local actors sometime have some comparative advantages over international actors but also the other way around and we should be very much aware of the ability of each to abide by those principles and recognize what the limits are and and fully acknowledge what other actors can do in order to work in a complimentary fashion on the Security Council point and something I used to have to do in my old job at a talk show in New York was to try and get the Security Council to adopt language on IHL on protection of civilians on humanitarian principle that was accurate and relevant and it was interesting that in recent years it also turned to humanitarian principles and he could have a whole conversation as to whether it's a good idea for a political body like the Security Council to get involved in humanitarian principles that's that's another can of worms but what we found in fact again are preparing for here I went through the language it had adopted recently and as is frequently the case it has just not been consistent nor necessarily accurate so I've got some P rst a presidential statement over 2013 where the Security Council calls on all parties to the conflict to respect the UN guiding principles of humanitarian humanitarian emergency assistance so it's a bit odd calling on state parties to respect the principles but maybe there's there's a step missing which is State Parties allow others to operate in a principled manner we have language and I'm looking at the Security Council of 2013 where the council emphasizes the need for all parties to an armed conflict to uphold and respect the humanitarian principles uphold and respect maybe after something's lost in translation but when I googled uphold it didn't help it means maintained you don't maintain the principles just in fact another one calling upon all parties to respect the impartial is language I like actually calling upon all parties and the conflict to respect the impartiality independence and neutrality of humanitarian actors this is in a resolution of last year you know Manu Scone the DRC and that's I think the occasion on which the Security Council has got it most accurate call upon all parties to the conflict to respect impartiality independence and neutrality of the humanitarian actors I will ask you for a few minutes and we don't have much time we take 5-10 minutes to put your to put yourself in the skin of a director of operations of a major international humanitarian organization and you are not a legal adviser please forget about this for a few minutes and remember there isn't so rarely a clearly right or wrong answer oh that's the very essence of a dilemma so indeed do not hesitate to to state what you think about those dilemmas your organization your Director of Operations has been active for yours in the country affected by civil war between the government and a rebellion in the remote west of the country your NGO has been able so far to maintain access although it regularly suffers from restrictions imposed by the government but it does have access not easy but it has access as the violence increases the government faces growing international condemnation for its military tactics that severly impacts the civilian population maybe the use of torture or for instance massively a petition has been launched by some NGOs asking for the government to be brought in front of the International Criminal Court and your colleague the communication and advocacy director what's definitely organization to sign the petition please by raising your hand do you think this is acceptable to sign this petition who thinks it's acceptable as a director of operations having the principles in mind nobody so raise your hand those thinking that it's unacceptable close to consensus now a few that are like you on the on the line that quite sure so maybe where do you see this as Oh in order to know why you think it's in acceptable mostly what are what principles are at stake in in this instance and here I think we're getting to to your question what are the principles at stake here neutrality impartiality is humanity at stake indeed all are at stake when were or not or but maybe those that are the most directly at stake and may be intention and here we get to your to your question certainly humanity and this this kind of moral imperative to do something including to ensure greater protection of the civilian population that sir force and increasingly so in this conflict and then neutrality I think I mean somebody mentioned Authority why why is it at stake who would like to react on this icon if I repeat maybe for those who haven't heard maybe it's a political issue and so that goes against a neutrality but why is like seizing the the International Criminal Court is it a political issue I would say two things one there's a difference between the means and so I think the ICRC's means or neutrality means even though it is too advanced of course justice and accountability and everything the way it works is undercover and not really publicly and so sort of engages with the parties and risks and gets results that's one thing the difference between the means in the end and the second thing is that although fighting impunity or ending impunity is not political in itself there's there are different stages of the international criminal process and for example if you see the ICRC actually I wanted to raise that as a question so it's nice that we have it now the ICRC is position on giving testimony in front of I don't know the ICTY etc they've been several very well-known cases and that put the ICRC in a very difficult position so you can say they're giving a testimony even witness testimony can be political but because of this principle of neutrality the sec asked to be sort of alleviated from the legal completely legal obligation so if if that's right within the the absolutely criminal process of course it will be right at the first stage of petition where the criminal professionals or international confessions still haven't said anything about it so isn't it that's a very important point that that you're right I will come back to you in one second indeed for the ICRC considering that the importance that neutrality and being perceived as the neutral party has in our action we indeed managed to get the immunities of testimony I mean you will use a more correct water than than me in front of the ICC and some international criminal jurisdiction and forests essential or critical in order to carry out our work but well so thanks for bringing this up what I wanted to raise here is this typical dilemma between indeed humanitarian action and justice and both satisfy this idea of humanity however justice as you rightly pointed out creates some tensions with our ability to be accepted by all I mean just as well did the International Criminal Court for instance an indictment by the International Criminal Court might be perceived as a political act as it was in the past in some countries I mean you all have in mind Sudan certainly well this resulted in the eviction of this kind of situation resulted in the eviction of sixteen or seventeen nongovernmental organizations many did you want to react it was just going to this particular conversations yep struck struck me that perhaps we should have said something right at the outset which is what organizations should comply with the principles not every NGO should comply with them it depends what you want to do it's those wishing to carry out humanitarian actions so provide relief carry out some very specific protection activities in the field if you want to carry those out it's it it's a very good idea for you to comply with the principles and as you point out be seen be perceived as complying with them someone mentioned an NGO an NGO that engages in human rights advocacy obviously that strives towards the same end goal of promoting compliance with the law but it goes about it in a very different way at Sage there's very different challenges it doesn't have operations in the field that a party that feels aggrieved by the way you've behaved can just interrupt so let's bear it in mind it's not as if they are principles of how NGOs should behave they are addressed and relevant to those who want to carry out particular activities that require them to be close to people in the field but I think this is a very interesting conversation that we're having on how different actors who have the same ultimate common goal of providing protection by compliance with the law should engage with accountability mechanisms we've mentioned the ICC ICTY what about sanctions mechanisms increasingly they are going to act as in the field to figure out not just how the sanctions in whether the sanctions are having a humanitarian impact but also who are the violators who's committing violations if you an actor in the field do you engage with them a very live question that different actors have a different reply to ICRC is very lucky I used to be ICRC it was very lucky it was very easy to say sorry but no when I was at the UN we were in a far more complex position because we have to cooperate with the ICC for example but we still have operations in the field how do you balance this right and that's precisely why it is so critical for organizations to be also honest about their own limitations as we said before being neutral and independence in it's not an end in itself it enable us to carry out our human turn mission and to do so in an impartial manner by being accepted by the parties in a given conflict when organizations either because of external constraints or because of institutional choices decide to take some positions for instance that would be at odds with neutrality is it not a humanitarian organizations anymore wouldn't be well placed to say that it might be that in the particular circumstances they have anywhere a very restricted access the do not manage to have access and in the calculus they consider that in order to contribute to the protection of these people maybe yes that could that could help to this ultimate protection objective yet then we would expect those actors to be more honest and transparent about those decisions and then to recognize that in this particular case that they'd done seen and perceived as as neutral and and that they are not delivering this neutral independent humanitarian action rather than contribute to this blurring of lines between organizations we are very diverse learner factors and very complementary to but with it when more or less not in the same position to abide by all those principles that we are discussing today I'm going to spend a few minutes outlining the law regulating one type of humanitarian action humanitarian relief operations and the rules regulating humanitarian relief operations humanitarian assistance are simple and essentially the same in international and non-international armed conflict so primary responsibility for meeting the needs of civilians lies with the party to the conflict that has control over them I am grossly simplifying we could have a week's seminar just on this so I'm going to grossly simplify if that party with a responsibility to meet the needs of the civilian populations fails to do so states and international humanitarian organizations may offer to carry out relief operations and I think this sequencing is important there's always a tendency by humanitarian organizations to want to rush in it's like hold on let the party to the conflict see whether it can meets the needs yes or no in the majority of cases the consent of affected states is required but may not be arbitrarily withheld there are two situations in which consent states have no latitude to withhold consent the first is situations of occupation and the second are situations where the Security Council has taken a binding decision imposing relief operations and I say imposing rather than authorizing because I don't want to have an unfortunate precedent where if the Security Council has not imposed them a parties that can somehow say I have no obligation to allow them once relief operations have been agreed to all parties must allow and facilitate rapid and unimpeded passage of released consignments but they may impose technical arrangements under which such Pass is allowed now normally operationally it is at this stage of the game that most of the problems arise a party to the conflict has said yes of course you can come in and carry out relief operations but in practice it it makes it extremely difficult for the relief operations to be carried out that said in in the few minutes that remain today I'm going to focus on two central legal questions that arise at an earlier stage of the process and that have received considerable attention in recent years the first question is I say consent is required but whose consent and the second question I said is consent is required not to be arbitrarily withheld what amounts to an arbitrary withholding of consent to offers to carry out relief operations another key legal question which has arisen with immediate operational consequences are what are the consequences when a party arbitrarily withhold consent can or unauthorized operations be carried out that is a question that's not addressed by IHL but rather by other bodies of international law and may be something we can turn into discuss later so first and foremost whose consent is required and here I'm talking about the initial greenlight to operate in a particular context it's clear this is required but it's less clear at least in relation to non-international armed conflict whose consent is required so if we look at international armed conflict article 70 of Additional Protocol one requires the consent of the parties concerned in the relief actions this is in the plural in this position this this provision refers to most notably the state party to the conflict in whose territory you want to carry out the relief operation there's consent there consent is required pretty simple the position in non-international armed conflict is more complex and in fact there are two different provisions that are of direct relevance to this the first is common article 3 - of the Geneva Conventions that I mentioned earlier and this provides that an impartial humanitarian body link back to our principles may offer its services to the parties to the conflict it is entitled to offer them to either side the state and the organized armed group however it's silent as to whose consent is required in order to carry out the relief operations some have interpreted article 3 - as implicitly allowing relief operations to be carried out if the party to whom you have made your offer accepts it the consent of the other side is not required provided of course that your relief operations don't have to carry a transit through territory controlled by enemy if you can get there directly some say all is required is the consent of the party to whom you've made the offer I have to say I find it difficult to interpret the Silence of article 3 - in this particular way I think it really leads to a significant infringement of state sovereignty to say I've made an offer to the organized armed group I can reach that the territory controlled by the organized armed group directly therefore your consent is not required at best this approach would only apply to the organization's the actors specifically referred to in common article 3 so impartial humanitarian organizations all other actors wishing to carry out relief operations would have to comply with the more stringent requirements in article 18 to an article 18 - of Additional Protocol - is more explicit on this point it requires the consent of the High Contracting party concerned end of quote this appears to be a clear reference to the state party to the non-international on conflict the High Contracting party concerned however it has been suggested by some that a high contracting party that a state is concerned by relief operations only if they have to transit through territory under its control if somehow the territory controlled by the opposition by the rebel group can be reached directly from neighboring states the state is not concerned by the relief operations and therefore its consent is not required again I have to say I'm a bit of a positive dinosaur I have to say I find this interpretation of article 18 to a bit problematic I have to say the suggestion that a state is only concerned by activities being carried out in its territory is not concerned by activities being carried out in its territories they can be carried out by a neighboring states just it's contrary to basic considerations of territorial seventh sovereignty it just doesn't make sense to me also more literally this means that although we have a reference to the high contracting party concern there may be instances in which in fact there is no high contracting party consent concerned which i think is is countering it's a counterintuitive reading of the expressed language of article 18 - so where does this leave us I have to say in light of the Silence of article 3 on this specific issue of whose consent is required and the specific reference to the high contracting party in article 18 - to the state I think a view that gives due weight to general principles of international law relating to state sovereignty and also to estates obligations towards the civilian population would be to say that the consent of the state is always required even in relation to relief operations that can be carried out from neighboring states but that in those circumstances the state would have her a narrower range of grounds for withholding consent they need to be much more closely and directly linked to the territory in question the territory under control of the opposition for example withholding concern out of concern with building consent out of concerns that the relief operations could somehow legitimize the opposition would be arbitrary or cement its control of territory that would also be an arbitrary ground for withholding consent in those circumstances so my conclusion would be the consent of the state is always required but it's not an arrow around range of grounds for withholding consent this is the law and I'm looking at our colleague from Columbia which who's always very usefully bringing us to the operational reality is what are the operational realities in practice whatever the law says it's you would not go and carry out relief operations without the agreement of all the parties to the conflict through whose territory you go because doing so would put you your operations and the very people you're trying to assist at risk so there's a very clear difference between the legal position and what you would do operationally the second question that I wanted to go through with you today and is what amounts to arbitrary withholding of consent now even though we have very clear language in article 70 a P 1 and article 18 ap 2 that consent is required it was already understood at the time of the negotiations that parties didn't have an absolute and unlimited freedom to refuse to agree to relief operations a party refusing consent had to do so for valid reasons and I'm quoting here from the the commentary is not for arbitrary or capricious ones that make sense but the problem is that we don't actually find any definition of or even guidance in treaty law of what amounts to an arbitrary withholding of consent and this is a point that has not been addressed by any national or international tribunal or human rights mechanism so let's try and Paquette and perhaps I'll share my thinking at the moment and then see if you can add other grounds and I think it's very useful to look at international law more broadly not just IHL to see what is understood by arbitrary and human rights law in particular and also general principles of public international law provides some guidance on the type of conduct that would be arbitrary and circumstances in which withholding consent would be arbitrary essentially it is in three situations first if it's will withheld in circumstances that would violate a party's other obligations under international law towards the civilian population in question secondly if withholding consent violates the principles of a necessity and proportionality and thirdly if consent is withheld in a manner and that is unreasonable and just lacking in predictability or otherwise inappropriate now if we quickly look at the three different possible headings in turn and when do you think that withholding consent could violate a party's other obligations towards the civilian population when it would violate human rights law and in particular right to life right to house right to normal circumstances of flight like infrastructure and things like that any particular other provisions under IHL sorry that would be a circum that might be a circumstance exactly on absolutely the prohibition of starvation of the civilian population so that's exactly the kind of thinking I intuitively started off from IHL and I said okay sorry go ahead and we also see connect with the grave breach because sometimes the judicial guarantees are arbitrary not not provided but in case of humanitarian law it is the most and I'm same as also in I in common article 3 yeah and I'm kind of focusing I think you're looking more broadly at humanitarian action I'm kind of focusing very much on relief operations assistance so in what circumstances would saying no to an offer of assistance violate a party's other obligations under international law and yes under ihr it would be when the population is facing starvation and a party says no relief goods cannot come in that's one example another example that comes to mind is withholding consent to medical operations including on the ground that medical goods could be used to treat wounded enemy combatants as you know the wounded and sick including enemy combatants must receive to the fullest extent practical and with the least possible delay the medical care required by their condition and no distinction may be made on the provision of health care other than on medical grounds so withholding consent to medical relief on the patient's on the ground that they could assist enemy combatants would violate this rule the same medical goods are also likely to be needed for the civilian population and withholding consent in those circumstances would also violate civilians entitlement to to medical care another possible ground is selective withholding of consent with the intent of discriminating against a particular group so for example systematically rejecting offers of assistance for regions populated by ethnic groups perceived as favoring the enemy this would be a violation of the principle of the prohibition on non-discrimination so these are kind of plucked from IHL and then as you correctly said there's also international humanitarian law that is relevant so withholding consent in situations that violates fundamental human rights most notably the right to physical integrity and also we mentioned economic social and cultural rights situations where it prevents the satisfaction of the minimum core of these rights the rights to an adequate standard of living including food and water and health and medical services that would be won another instance in which withholding consent would violate I've got one minute I'm going to get to the end and then you've got the first question would violate a state's other obligations would be arbitrary because it violates their other obligations the second heading was withholding of consent in the violation of the principles of necessity and proportionality and here I'm thinking of the principles of necessity and proportionality as expressed in international human rights law so even where consent is withheld for a legitimate ground it'll nonetheless be arbitrary if it exceeds what's necessary in the circumstances so limitations in terms of time duration location and affected goods and services must not go beyond what is absolutely necessary to achieve the legitimate aim so while it might be acceptable perhaps at the outset of hostilities to say no hold on no relief operations coming in it would no longer be acceptable after one week or while it might be acceptable to say there is hot fighting in this particular area therefore no relief operations it wouldn't be acceptable to say and therefore no activities in the rest of the country it's an ongoing assessment that needs to be carried out and thirdly my third heading focuses on the manner in which consent is withheld and it would be arbitrary if it is done in a manner that's unreasonable or inappropriate or could lead to injustice or lack of predictability and I suppose one very clear example of this would be circumstances where consent is withheld without providing any reasons for this so it's not clear the process for providing reasons is not cleared you have to provide them to each individual actor that makes an offer yes or no it's honestly not clear in the law however what is clear is if there's a blanket refusal of accepting relief operations without the provision of any reasons this would be average why essentially it wouldn't allow us to even assess whether the grounds are legitimate legitimate yes or no you just don't know why you are prevented from carrying out relief operations so withholding consent without providing any reasons would give rise to a rebuttable presumption of arbitrariness I was interesting interested in your opinion about the definition of the relief itself because if you look it from the IHL perspective and Geneva Conventions we have the commentaries and there is more or less for the ICRC let's say at least but if you include in the interpretation and definition of the relief supplies for the for the perspective of state granting the consent from human rights perspective I think through ICCPR it's still okay because you will be talking about right to life and inhuman treatment but as soon as you go to social economic cultural sphere because of my country Georgia where I've seen this struggle in 2008 there was discussion how far we should interpret relief supplies after first month's supply of food medicine moving hospital is okay but when we talk about capacity building for welfare or broadly and you know defining right to life and medicine then it goes far beyond you know moving hospital and there was a tension between the international organizations as well as parties to the conflict should we consider this as a relief operation because as far as I remember actually some of the international organizations try to push this idea and there was a battle not within the IHL dream but from the Human Rights interpretation perspective and it's interesting because there is no match written on that that's a very good question and as you say the the threshold of IHL is actually quite low in essentially its essential goods essential for the survival of the civilian population it's really not a very high threshold and obviously it's just a bottom line though there's nothing that precludes an actor who wants to try to carry out relief operations and beyond to try and persuade the relevant parties can I also carry out these activities but they're not specifically addressed by the law so the state would be entitled to not consent to them not agree to them even arbitrarily they're not covered by the law I think you raise an important point in relation to IH into human rights law because I've always felt there was a bit of a disconnect between IH owlets but that's a pretty high threshold of suffering you've got to be starving before it would be unlawful or arbitrary to withhold consent and human rights law we're fine we've managed it to narrow it down to two rights to physical integrity fine also pretty severe suffering but once you start looking at economic social and cultural rights you're talking about an adequate standard of living including food and water health and medical services it opens it out quite dramatically I've tried to narrow it down by focusing on on the core I'm looking for the word the status of the core the minimum core of these rights but it's still pretty broad so that's that's just a question that sits uncomfortably I think between the potential range of rights and situations in which it would be arbitrary to withhold consent under human rights law and those where it would be equally unlawful under IHL we have to keep in mind that the bottom line when we come back to the principles the bottom line for Humanity an action may be wet and I don't know if to what extent you will agree with me on this statement but what qualifies relief action as humanitarian including in IHL is indeed this impartial character so in our view the bottom line for humanitarian action is definitely to respect those principles of humanity and impartiality that we've discussed today in order to do so within the ICRC and within the broader humanitarian sector it's acknowledged that being neutral being independent is critical in order to to achieve this objective of delivering impartial humanitarian assistance and protection and I'm missing the second part of my idea but that indeed as we discussed today it requires some efforts from human to human internal organizations it is challenging it is rarely a right or wrong answer and it requires a lot of honesty and transparency by organizations in in doing so so dialogue with all is critical in order to do so it's not about lip service to humanitarian principles it's about what you do how you operate and doing so in a consistent manner and with clarity so that everyone understands why you are doing something in a particular way or why you're not I think that's the key thing to emphasize about compliance with humanitarian principles

Channel: International Committee of the Red Cross (ICRC)

Views: 25,178

Rating: 4.8474116 out of 5

Keywords: icrc, red cross, international red cross, geneva convention, ihl, humanitarian, law, war, conflict, safeguarding health care

Id: gvkjLmv7r24

Length: 72min 50sec (4370 seconds)

Published: Thu Jun 02 2016