The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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■ Humanitarian Principles

Humanitarian principles are among the oldest reference governing humanitarian action in terms of both its fundamental character as well as in its practical deployment. They establish what are the acceptable conditions under which humanitarian action can be safely provided for the benefit of populations and territories affected by violence and armed conflict.

The fundamental humanitarian principles of humanity, impartiality, neutrality and independence constitute the four common principles to international humanitarian law (IHL) and to the Red Cross and Red Crescent Movement, as well as to United Nations resolutions and other regional organisation such as the European Union and the African Union.

They each have a legal, ethical, and operational dimension that must not be dissociated. These four principles are the cardinal points of a compass which is essential for dealing with the operational and ethical dilemmas of humanitarian action. Their interpretation, contextual implementation and articulation with other principles requires a clear understanding of what is at stakes beyond the agreed terminology.

The Red Cross and Red Crescent Movement refer to seven fundamental principles: humanity, impartiality, neutrality, independence, voluntary service, unity and universality.

IHL refers to humanity and impartiality as core imperatives for humanitarian organizations in addition to neutrality and independence and of other specific operational principles applicable to their humanitarian activities.

UN resolutions relating to armed conflict refers to the four humanitarian principles of humanity, impartiality, neutrality and independence.

The 1991 UN Guiding principles for humanitarian assistance refers to a broader set of 12 general principles that have been designed for natural disaster and emergencies rather than for situation of armed conflict. It acknowledges that humanitarian assistance must be provided according to the principles of humanity impartiality and neutrality but does not mention independence. It also explicitly refers to the principle of State consent to humanitarian assistance and respect for State sovereignty, territorial integrity and national unity. The application of these later principles is limited by IHL provisions regarding humanitarian assistance in situation of armed conflict.

Humanitarian principles are part of International law including IHL. Concretely, this means that in situation of armed conflict, the principle of military necessity framing the conduct of hostilities is limited and mirrored by the one of humanitarian imperative governing relief operations. This is reflected in humanitarian operational principles deriving from IHL (I).

Humanitarian principles are also endorsed by numerous resolutions of the United Nations Organization. However, in the context of UN resolutions, humanitarian principles applicable to situation of armed conflict remains under the political pressure of the concept of sovereignty of States which creates tension between fundamental humanitarian principles and the more restrictive UN Guiding principles for humanitarian assistance adopted in 1991 (II).

The content of humanitarian principles have been historically elaborated within the Red Cross and Red Crescent Movement to frame its internal organization and activities in accordance with IHL. The definition and operational implementation of humanitarian principles have been under pressure in numerous situations of armed conflict, fuelling important legal and ethical debates by the International Committee of the Red Cross (ICRC) and other humanitarian organizations (III). This is notably the case with regard to defining how principles can govern the responsibility of humanitarian organization that are witnessing mass crimes and grave violations of IHL (IV).

I. Humanitarian principles codified by IHL

Since 1949, the humanitarian principles of humanity and impartiality are a formal and overarching part of IHL, which is the law applicable in situation of armed conflict. They articulate the concepts of military necessity with humanitarian imperatives. The humanity and impartiality principles are complemented by the neutrality principle which is attached to the IHL protected civilian status granted to humanitarian relief operations and personnel. They are also the entry point to other IHL operational principles applicable to relief operations in situation of armed conflict.

Humanitarian Operational Principles and Humanitarian Space

  • IHL refers to the principles of humanity and impartiality to define humanitarian action and organizations. These are the principles which the International Court of Justice has also elevated as the criteria to qualify all humanitarian action in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA, 1986).

•The principles of independence and neutrality are instrumental to ensure humanity and impartiality. IHL also provides principles that regulates how humanitarian operations are conducted by impartial humanitarian organization.

•These humanitarian principles must be operationalized in relief operations, as it is the respect for these principles that grants humanitarian organizations their right to be present in the field in times of armed conflict under IHL.

  • IHL foresee a general right of humanitarian initiative for impartial and humanitarian relief organizations. This right of initiative is complemented by specific rights established under IHL for the foreseen and specific relief operations that will take place in situation of armed conflict. These rights are intended to ensure that relief activities benefit the most vulnerable rather than support to a Party to the conflict or fuel the war economy. Consequently, they also entail a duty for humanitarian organizations to maintain the humanitarian nature of relief operations. These humanitarian rights and responsibilities created by IHL define humanitarian operational standards that are sometimes referred to as “humanitarian space”.

=> Under IHL, impartial humanitarian organization are entitled to:

  • offer humanitarian services to all and any party to the conflict without such services being considered as interference within state national affairs;

•safe and unimpeded access to victims in situations of conflict, especially to the wounded and sick; •the right to independent evaluation of the humanitarian needs of the victims;

•the right to undertake relief actions when the civilian population is suffering undue hardship owing to a lack of supplies essential to its survival;

•the duty to monitor that such assistance is supplied without any discrimination, except for that based on need, and that it reaches the most vulnerable;

•the right to treat the sick at all times and in all places in conformity with the principles of medical ethics.

Relief organizations must respect and defend these operational standards through their daily actions. These standards can be invoked in all situations of armed conflict. They must be referred to in agreements signed between impartial humanitarian organizations and national authorities or other actors. By doing so, relief agencies participate in consolidating and strengthening the international custom of humanitarian action. Otherwise, they risk undermining the principles of IHL.

Parties to the conflictRight of accessRight of Humanitarian InitiativeSovereignty .

II. Humanitarian principles in UN resolutions

Respect of humanitarian principle is inserted in numerous United Nations resolutions with different formulations reflecting areas of State consensus and debate regarding humanitarian principles notably in relation with the concept of state sovereignty.

In 1991, UNGA resolution 46/182 adopted the UN Guiding principles of humanitarian assistance. These guiding principles apply to a mixed situation of natural and man-made disaster, emergencies and armed conflict. This wide range of situations strengthen the reference to State Sovereignty and consent against the IHL levelling of differences and responsibilities between state and non-state parties to conflict notably with regard to the principle of safe and unimpeded humanitarian access.

Indeed, UN Guiding principles draw a wide list of 12 principles including the three common international humanitarian principles of: humanity, neutrality and impartiality.

But they also refer to additional principles going far beyond the usual humanitarian principles listed by IHL and by the red cross and red crescent Movement. They notably uphold the principles of State Sovereignty, territorial integrity, national unity, and State consent. Such principles reflect the international legacy of the UN Charter in peace time but they contradict provisions of IHL applicable to humanitarian action in situation of armed conflict. They make humanitarian assistance dependent on State request and consent rather than on the IHL obligations lying on each party to the conflict with regard to people and population living in territories under their control or under dispute. They also fragilize the humanitarian status of assistance to victim of armed conflict that may unduly be construed as crime against State security, sovereignty, or national territory.

Later UN resolutions have not fully clarified this issued that remain at the centre of political tensions between States.

Since 1991, various UN resolution resolutions from General assembly and Security council have officially endorsed the four humanitarian principles applicable to situation of armed conflict: humanity, neutrality, impartiality and independence. The principle of independence was added as a fourth one in 2004 by the UNGA resolution 58/114. Independence was confirmed as complementary to the principles of humanity, neutrality, and impartiality by the UNSC in resolution 1894 (2009) on the “Protection of civilians in armed conflict”.

UN resolutions have also elaborated the principle of safe and unimpeded humanitarian access to victim of conflict and relevant reference to IHL. This is notably reflected in UNSC resolutions on protection of civilians 688 (1991); 1265 (1999); 1296 (2000) and 1502 (2003). The scope of humanitarian access was also extended to the right of humanitarian personnel to independently evaluate the needs and to the importance of such assistance being delivered based on need, devoid of any political prejudices and aims following the adoption of UNSC resolution 1502 (2003).

However, tension between State sovereignty and humanitarian principles applicable in situation of armed conflict remains.

This tension culminated with permanent members of the UN Security council vetoing numerous resolutions on humanitarian assistance in Syria. In 2014, UNSC resolution 2165 (2014) finally established a cross-border assistance program for victims of the armed conflict in Syria without Syrian government consent. It acknowledges limits of state sovereignty regarding the right of access of humanitarian assistance in war related disputed areas. The concept of arbitrary withdrawal of State consent to humanitarian action in situation of armed conflict is considered as a breach of IHL. This tension continues to materialize in the wording of various UN resolutions referring either to the “guiding principles of humanitarian action” or to” humanitarian principles and relevant provision of international law”. States pushing for the later formulation seek to decouple humanitarian assistance from the emphasis on State Sovereignty and consent.

The diplomatic debate on wording remains active among States at the United Nations level for other situation of armed conflict. However, UN Guiding principles have been pushed back and replaced by reference to humanitarian principles in recent United Nations Security Council resolutions 2556 (2019) renewing the mandate of the MONUSCO in Democratic Republic of Congo,2533 (2020) renewing the cross-border mechanism in Syria and 2568 (2021) renewing the African Union mission in Somalia.

III. Humanitarian principles developed by the International Red Cross and Red Crescent Movement

The International Red Cross and Red Crescent Movement codified in 1965 seven Fundamental Principles that serves as a basis of its organization and actions. They are the principles of: humanity, impartiality, neutrality, independence, voluntary service, unity and universality.

The seven fundamental principles of the Red Cross-Red Crescent Movement

Humanity

The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation, and lasting peace among all peoples.

Impartiality

It makes no discrimination as to nationality, race, religious beliefs, class, or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

Neutrality

In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious, or ideological nature.

Independence

The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.

Voluntary Service

It is a voluntary relief Movement not prompted in any manner by desire for gain.

Unity

There can be only one Red Cross or one Red Crescent Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.

Universality

The International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide.

The Red Cross and the Red Crescent

To a large extent modern humanitarian action has evolved outside the Movement, and the humanitarian principles have been the subject of many critical debates and different interpretations aimed at improving the effectiveness of humanitarian relief action. This is particularly true of the principle of neutrality. Certain humanitarian actors felt that the strict interpretation of this principle, combined with the respect for absolute confidentiality, was an obstacle to the effective protection of victims of conflicts.

The silence that the International Red Cross imposed on itself during World War II is at the heart of the controversy over this principle. An organization such as Médecins sans Frontières, by refusing to subject its relief actions to absolute confidentiality, developed the notion of “bearing witness” ( témoignage ) to the plight of victims as an additional measure of protection.

Modern humanitarian action is thus based on four mains concepts—namely, humanity, independence, impartiality, and neutrality—which are interpreted in relation to their operational effectiveness. Neutrality is no longer an absolute tenet of humanitarian action but is rather a means, the value of which can be questioned in certain situations.

The debate surrounding the neutrality of humanitarian action reflects a key question: whether there is a principle of responsibility to which humanitarian organizations are accountable when faced with situations of extreme violence and mass crime against populations. In 1992, the ICRC has updated its doctrine on neutrality recognizing that public denunciation of violation of IHL by parties to a conflict was not a breach to the principle of neutrality.

IHL itself only refers to two principles. The Geneva Conventions require that relief organizations be humanitarian and impartial. The Conventions also establish various operational principles related to the concrete relief or protection activities carried out by such organizations.

The general and operational principles of humanitarian action are spelled out inter alia in the Code of Conduct for the International Red Cross and Red Crescent Movement and in the Humanitarian Charter of the Sphere Project.

PRINCIPLE OF HUMANITY

Humanity is identified and defined by its sole intention and aim to prevent and alleviate human suffering wherever it may be found; to protect life and health and to ensure respect for the human being. To guarantee the humanitarian nature of an aid organization or a relief activity, it must be possible to prove that humanity is the only concern taken into consideration. This principle implies that each relief organization must be free from any other agenda and independent from any constraints other than humanitarian ones.

PRINCIPLE OF IMPARTIALITY

The Geneva Conventions uses the term impartial to define humanitarian relief action. This crucial principle qualifies humanitarian action carried out without adverse discrimination. It reminds us the universality of human suffering. No one can be deprived of the assistance he or she needs.

**☞ Impartiality must not be confused with a mathematical neutrality that would consist of providing equal aid to each party present, under the pretext of not favouring anyone. Impartiality actually requires that relief be given in priority to those who most need it, regardless of their affiliation.

This principle, the key to humanitarian assistance, has two complementary aspects:

•the distribution of aid and the humane treatment of all victims must be carried out without any adverse distinction based on grounds such as race, religion, or political opinion or the affiliation to one or the other of the parties to an armed conflict;

•in providing assistance, including medical assistance, priority must be given to those who most need it.**

This second principle implies that humanitarian action is not provided on an equal but equitable basis, depending on the vulnerability and the specific needs of the individuals and populations affected. Humanitarian actors are authorized to act in a discriminate manner, depending on the importance and urgency of the needs. This principle of impartiality and non-discrimination between victims was recognized as paramount by the International Court of Justice to distinguish between a legitimate humanitarian action and an illegal intervention by a State into the internal affairs of another State ( infra Jurisprudence).

**PRINCIPLE OF INDEPENDENCE**

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Independence is a necessary capacity and mean to allow true implementation of other principles such as those of humanity and impartiality. Humanitarian action must be independent from any political, financial, or military pressures. Its only limit, its only constraint, and its only goal must be humanity. Relief organizations must therefore be capable of proving that they are independent from any outside constraints, and that their relief activities are solely based on impartial response to needs. This principle reflects the key concept that differentiates humanitarian acts carried out by States from those undertaken by private impartial humanitarian organizations. However, the private non-profit nature of an organization is not enough to prove its independence. Factors such as the overall funding of the organization, its founding principles, and the transparency of its activities must also be taken into account.

PRINCIPLE OF NEUTRALITY

To be neutral means not taking sides in a conflict, whether directly or by allying oneself with one or another party to the conflict. This notion is tied to international politics: certain States developed the concept of neutrality so as to be able to stay outside of military alliances and conflicts in which their neighbours engaged. When extending this concept to humanitarian organizations, it has to be approached and interpreted differently.

•States’ neutrality obeys a specific regime established by the laws of war. A neutral State agrees to not take sides in hostilities and to abstain from committing any hostile act or any act that could give a military advantage to one party to the conflict.

•Humanitarian neutrality consists of getting the parties to the conflict to accept that, by nature, relief actions are not hostile acts, nor are they de facto contributions to the war efforts of one of the belligerents. It also obviously requires that humanitarian personnel abstain from any direct participation in hostility or committing an act harmful to a party to the conflict. Such acts could entail losing IHL protected status and making them a legitimate target for attack.

From its origin, this principle helped shelter members of relief societies from hostilities. It is one of the Fundamental Principles of the International Red Cross and Red Crescent Movement, which, in order to continue to enjoy the confidence of all sides, not only refrains from taking sides in hostilities but also refuses to engage in controversies of a political, racial, religious, or ideological nature, at all times. Since the 1990s, the Red Cross doctrine concerning neutrality has evolved, considering that the denunciation of serious violations of IHL committed by the different parties to a conflict was not a participation in the political controversies and as such was not a violation of its neutrality.

In addition to the four 1949 Geneva Conventions and Additional Protocol I of 1977, various other international conventions address the issue of neutrality:

•the 1856 Paris Declaration Respecting Maritime Law;

•the 1907 Hague Convention (IV) in Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land;

•the 1907 Hague Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines;

•the 1907 Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention;

•the 1907 Hague Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War;

•the 1907 Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War; •the 1909 London Declaration Concerning the Laws of Naval War;

•the 1936 London Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of 22 April 1930.

The principle of neutrality was the subject of great controversy revolving around the ICRC’s silence during World War II. The meaning of the principle has been developed and clarified since the 90s, in the wake of the war in former Yugoslavia and Genocide of Tutsis in Rwanda. Indeed, acting with discretion and in confidentiality without resorting to public denunciation in certain circumstances does not imply that the ICRC is indifferent to the issue or not taking any actions towards resolving it. As part of its work, the ICRC takes all appropriate steps to put an end to violations of IHL or to prevent their occurrence, but it will always start by using a persuasion, a dialogue and humanitarian diplomacy approach towards the concerned party rather than going public on the issue it witnessed. In order to preserve its acceptance by the various parties and its ensuing access to various areas where IHL protected person are found, the ICRC will ensure these steps remains confidential from the opposing party, other organisations and the general public. It will use public denunciation only as a last resort after having carefully considered the risks and opportunities of taking such a step. In particular, the expected impact (including on preventing further violations, but also on the ICRC’s credibility and reputation) and potential risks to the ICRC’s acceptance, access and ability to carry out its humanitarian work must be carefully assessed.

According to its doctrine on public denunciation, the ICRC will consider four conditions before going public: (i) The violations (torture, bombing or shelling of civilians, attacks on refugee camps, attacks on hospitals or Red Cross/Red Crescent personnel, etc.) are major and repeated; (ii) the steps taken confidentially have not succeeded in putting an end to the violations; (iii) such publicity is in the interest of the persons or populations affected or threatened (i.e. revealing the information is likely not to cause more harm to the concerned persons or populations); (iv) the ICRC delegates have witnessed the violations with their own eyes, or the existence and extent of those breaches were established by reliable and verifiable sources (i.e. relying exclusively on facts and not allegations). Therefore, the ICRC stressed that the public denunciation of grave violation of IHL committed by parties to the conflict shall not be construed as a breach of its neutrality. This same doctrine can be referred to by other impartial humanitarian organization exclusively engaged in humanitarian action for victims of armed conflict.

•Neutrality is no longer presented as an intangible principle guiding humanitarian action but as an operational principle. This means it is only respected to the degree to which it is efficient within relief action. It has been recognized that taking a public position on an issue does not necessarily contradict this principle. Neutrality is not synonymous with obligations of silence or absolute confidentiality. There are different variations depending on the situation and the type of relief activity being carried out. This notion is not in opposition to careful communication that takes into consideration the victims’ overall interest and that is respectful of the sensitive nature of certain information.

The International Red Cross and Red Crescent Movement has actually entrenched the fact that it makes public denunciations of grave and repeated violations of IHL, notably during the conflict in the former Yugoslavia. IHL itself establishes that such denunciations must be addressed to States and to the UN (API Art. 89). Obviously, public opinion and the media have an important role to play in this chain of recourses.

➔ War crimes/Crimes against humanity </content/article/3/war-crimescrimes-against-humanity/>__

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V. PRINCIPLE OF HUMANITARIAN RESPONSIBILITY

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This set of principles, in particular the operational ones, raises the question of what humanitarian organizations’ responsibility should be when the principles are not respected. The implementation of IHL is not only up to belligerents. It also depends on the rights and initiatives of the ICRC and other impartial humanitarian organizations framed under IHL. It is impossible to ignore the responsibility of these organizations as humanitarian actors engaged in negotiating and delivering relief to victims of armed conflict. This responsibility may ultimately reach threshold of complicity in certain situations in which the assistance does not allow to protect the safety and life of the populations notably in cases when the aid is denied or diverted by belligerents or when it is used to entrap or commit acts of violence against the affected individuals victims of the armed conflict) . Finally, the responsibility of these organizations is engaged when a member of their personnel directly witnesses crimes or other grave violations of IHL. Other aspects of this issue are developed in the entry on.

➔ International humanitarian law </content/article/3/international-humanitarian-law/>__ ▸ Nongovernmental organizations </content/article/3/nongovernmental-organizations/>__ ▸ Protection </content/article/3/protection-1/>__ ▸ The Red Cross and the Red Crescent </content/article/3/the-red-cross-and-the-red-crescent/>__ ▸ Relief </content/article/3/relief/>__ ▸ Responsibility </content/article/3/responsibility/>__ ▸ Right of access </content/article/3/right-of-access/>__ ▸ Right of humanitarian initiative </content/article/3/right-of-humanitarian-initiative/>__

Jurisprudence

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In its judgment concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, Merits, Judgment, ICJ Reports 1986), the International Court of Justice affirmed that

There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be

regarded as unlawful intervention, or as in any other way contrary to international

law. The characteristics of such aid were indicated in the first and second of the

fundamental principles declared by the Twentieth International Conference of the Red Cross, that “The Red Cross, born of a desire to bring assistance without

discrimination to the wounded on the battlefield, endeavours—in its international and

national capacity—to prevent and alleviate human suffering wherever it may be

found. Its purpose is to protect life and health and to ensure respect for the human

being. It promotes mutual understanding, friendship, co-operation and lasting peace

amongst all peoples” and that “It makes no discrimination as to nationality, race,

religious beliefs, class or political opinions. It endeavours only to relieve suffering,

giving priority to the most urgent cases of distress.” (para. 242)

In the view of the Court, if the provision of “humanitarian assistance” is to escape

condemnation as an intervention in the internal affairs of [a State], not only must it

be limited to the purposes hallowed in the practice of the Red Cross, namely “to

prevent and alleviate human suffering,” and “to protect life and health and to ensure

respect for the human being”; it must also, and above all, be given without

discrimination to all in need in Nicaragua, not merely to the contras and their

dependents. (para. 243)

The Court concluded that “the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence” (para. 268).

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