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

The International Red Cross and Red Crescent Movement codified the humanitarian principles on which it bases its action. The Movement’s seven Fundamental Principles are humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. ▸ Red Cross and the Red Crescent

To a large extent, however, humanitarian action has evolved outside the Red Cross 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 a more limited number of 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 against populations. ▸ Responsibility

Humanitarian law 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

According to the International Red Cross and Red Crescent Movement definition, the aim of this principle is to ensure that individuals are treated humanely in all circumstances. It is the justification for all medical and social action. 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 independent from any constraints other than humanitarian ones.

Principle of Independence

Humanitarian action must be independent from any political, financial, or military pressures. Its only limit, its only constraint, and its only goal must be the defense of the human being. Relief organizations must therefore be capable of proving that they are independent from any outside constraints, and the relief activities must also be independent from any military, political, ideological, or economic pressures.

This principle reflects the key concept that differentiates humanitarian acts carried out by States from those undertaken by private 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 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 that all individuals are equal in their 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 favoring any one. 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 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 neighbors 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.

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 humanitarian law committed by the different parties to a conflict was not 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 International Committee of the Red Cross’s silence during World War II. The framework of the principle has since been revised.

Operational Principles

  • The humanitarian principles must be translated into practice within the relief operations, because 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 the Geneva Conventions.
  • Only two of the Red Cross’s seven Fundamental Principles appear in the Geneva Conventions (and their two Additional Protocols) to identify humanitarian action. These are the principles of humanity and impartiality, 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 ( Nica ragua v. USA , 1986).
  • The Conventions foresee a general right of humanitarian initiative for impartial and humanitarian relief organizations. This right of initiative is completed by specific rights established by the Geneva Conventions and their Additional Protocols for the concrete relief operations foreseen. These define the operational standards.

In order to ensure that relief activities benefit the most vulnerable rather than fuel the war economy, every impartial humanitarian organization is entitled to:

  • free access to victims in situations of conflict, especially to the wounded and sick;
  • the right to freely evaluate 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 conflict. They must be referred to in agreements signed between humanitarian organizations and national authorities or other actors. By doing so, relief agencies participate in consolidating and strengthening the international custom of humanitarian action. Failing this, they risk, on the contrary, weakening the principles of international humanitarian law.

  • 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 now makes public denunciations of grave and repeated violations of humanitarian law, notably during the conflict in the former Yugoslavia. Humanitarian law 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

Principle of Humanitarian Responsibility

This set of principles, in particular the operational ones, raises the question of what relief organizations’ responsibility should be when the principles are not respected. The implementation of humanitarian law is not only up to belligerents. It also depends on the rights and initiatives of relief organizations. It is impossible to ignore the responsibility of these organizations: they are key actors in certain situations in which the assistance they provide is not enough to protect the safety and life of the populations (e.g., in cases when the aid is diverted by belligerents or used to trap or to commit acts of violence against a given population). Finally, the responsibility of these organizations is engaged when a member of their personnel directly witnesses crimes or other grave violations of humanitarian law. Other aspects of this issue are developed in the entry on ▸ Responsibility .

International humanitarian lawNongovernmental organizationsProtectionRed Cross and the Red CrescentReliefResponsibilityRight of accessRight of humanitarian initiative

Jurisprudence

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).

@ http://www.sphereproject.org/handbook/index.htm

http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JMNB?OpenDocument

For Additional Information: Blondel, Jean-Luc. “Fundamental Principles of the Red Cross and Red Crescent: Their Origin and Development.” International Review of the Red Cross 283 (July–August 1991): 349–57.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004.

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005.

Kalshoven, Frits. “Impartiality and Neutrality in Humanitarian Law and Practice.” International Review of the Red Cross 273 (November–December 1989): 516–35.

Mattli, Karl, and Jörg Gasser. “A Neutral, Impartial and Independent Approach: Key of ICRC’s Acceptance in Iraq.” International Review of the Red Cross 869 (March 2008): 153–68.

Moore, Jonathan, ed. Hard Choices: Moral Dilemmas in Humanitarian Intervention . Lanham, MD: Rowman & Littlefield, 1998.

Thürer, Daniel. “Dunant’s Pyramid: Thoughts on the ‘Humanitarian Space.’” International Review of the Red Cross 865 (March 2007): 48–61.