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Right of Access
In situations of conflict, humanitarian law establishes that relief organizations have the right of access to victims and regulates the conditions governing this access. This right is a central element of humanitarian action because it enables humanitarian organizations to carry out their work based on independent evaluations of the needs of the populations, to ensure the efficiency of their activities, and to control the delivery and fair distribution of aid.
Various rules organize this right of access for different categories of persons protected by humanitarian law. Relief actions of a medical nature are entitled to a broader right of access than more general forms of relief. As we will explain later, the rules are more detailed for international armed conflicts (I) than internal ones (II). In addition to the 1949 Geneva Conventions and their Additional Protocols of 1977, certain UN resolutions invoke the right of access (III). However, these are not mandatory for States, unlike the Geneva Conventions.
Humanitarian law posits and defends a right of access for the ICRC, impartial humanitarian organizations, and protecting powers, depending on the situation. This right is linked to the duties and responsibilities entrusted to relief organizations, which, in turn, are based on the rights of the different categories of victims.
The duties of humanitarian organizations are never limited to delivering relief supplies. They incur certain obligations with regard to protection of the populations they are assisting, by virtue of their very presence on the ground, and they must know these duties and take them on.
Access to Victims in International Armed Conflicts
Access to Wounded and Sick Persons
To provide relief to wounded and sick persons efficiently, medical personnel must have access to any place where their services are essential to collect and care for the wounded and sick. This right is set forth expressly. It is only subject to supervisory and safety measures that the relevant party to the conflict might deem necessary (API Art. 15.4).
More generally, humanitarian law defends the right of access through the provisions that enforce the respect for and protection of medical personnel, vehicles, and installations, and by establishing that no person can be punished for carrying out medical activities. It also provides for the evacuation or exchange of wounded and sick persons in besieged or encircled areas and for the free passage of medical and religious personne, and medical supplies and equipment destined to the area (GCI Art. 15, GCII Art. 18, and GCIV Art. 20).
Access to Prisoners of War and Detention Places
Humanitarian law also establishes provisions that ensure the right of access to prisoners of war for relief societies or any other organization assisting prisoners of war (GCIII Art. 125). Detaining powers may not prohibit such access. They can only limit the number of relief organizations authorized to visit and assist the prisoners. When making decisions restricting access, they must respect the special role entrusted to the ICRC by the Conventions with regard to access to and visits of prisoners of war (GCIII Art. 126).
Access to Protected Persons
Persons protected by humanitarian law include those who are interned or detained, living in occupied territories, wounded or sick, and nationals of an enemy power residing in the territory of the adverse party.
The Geneva Conventions establish clear provisions for their protection. In particular, the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War defends a right of access to, and relief for, all the persons protected by its provisions. These include civilians in occupied territories or gathered in places of internment, detention, or work, as well as wounded and sick persons. The Convention posits that relief societies and organizations (GCIV Art. 142) and representatives of protecting powers or their substitutes, such as the ICRC (Art. 143), must have access to these people.
States party to a conflict may never forbid such access. If they choose to limit it, they must respect certain minimum guarantees. In other words, subject to measures that they may consider essential to ensure their security or to meet other reasonable needs, the detaining powers must provide all religious organizations, relief societies, or any other organizations assisting the protected persons—and their accredited representatives—with all necessary facilities for visiting the protected persons and distributing relief supplies and other material needed for their work (GCIV Art. 142).
As with prisoners of war, the restriction that the detaining power may impose is a limit on the number of societies and organizations allowed to carry out their activities in its territory and under its supervision. However, this limitation must not hinder the supply of effective and adequate relief to all protected persons (GCIV Art. 142).
The ICRC and protecting powers have a special right of access to, and specific protection duties toward, protected persons. This role must not be jeopardized by the actions of other relief organizations.
Humanitarian organizations are authorized to take on the role of substitute protecting power. In such cases, they must fulfill the protective functions foreseen by humanitarian law for the benefit of the individuals concerned.
Access to Civilians
In addition to the provisions governing the access to persons expressly protected by the Geneva Conventions, humanitarian law posits that relief supplies must be granted free passage to civilians in general.
All parties to the 1949 Geneva Conventions must allow the free passage of shipments of medicine and material, as well as objects necessary for religious worship, intended only for the civilian population of another party, even if the latter is its adversary. It must also permit the free passage of all supplies of essential foodstuffs, clothing, and tonics intended for children under fifteen, expectant mothers, and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
- that the consignments may be diverted from their destination;
- that the control may not be effective; or
- that a definite advantage may accrue to the military efforts or economy of the enemy. . . . (GCIV Art. 23)
The power allowing the passage of these shipments is authorized to make its permission conditional on the distribution to beneficiaries being made under the local supervision of the protecting power. If there is no protecting power, this control is usually carried out by humanitarian organizations.
The quality and efficiency with which humanitarian organizations exercise control over the distribution and use of relief supplies are essential elements to the provision of aid. Humanitarian operations must meet these obligations in order to invoke the right of access and free passage of such supplies.
Provisions for allowing the free passage of relief are also established for the populations in occupied territories. If all or part of such a population is inadequately supplied, the occupying power must agree to have relief operations carried out on behalf of this population “and shall facilitate them by all the means at its disposal” (GCIV Art. 59).
Specific Provisions Governing Humanitarian Organizations’ Right of Access to Civilians
In 1977, Additional Protocols I and II (Art. 18) to the Geneva Conventions, relating to the Protection of Victims of International and non-international Armed Conflicts, widened the scope and added details to the Geneva Conventions’ provisions governing the right of access. Even if relief organizations find themselves in situations in which parties to the conflict have not ratified this Protocol, they can use it to interpret, refine, and complete the rules set forth in the Fourth Geneva Convention.
- If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with [food, medical supplies, and other necessary materials], relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection. (API Art. 70.1)
- The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party. (API Art. 70.2)
- The Parties to the conflict and each High Contracting Party which allow the passage of relief consignments, equipment and personnel in accordance with paragraph 2:
- shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted;
- may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power;
- shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned. (API Art. 70.3)
- The Parties to the conflict shall protect relief consignments and facilitate their rapid distribution. (API Art. 70.4)
- The free passage of relief supplies includes the right of access to the population in need and the free passage for the relief personnel participating in the operation (API Art. 71). This is tied to the provisions establishing the following:
—the freedom of movement of medical personnel must also be guaranteed (API Art. 71).
—The Parties to the conflict and each High Contracting Party concerned shall encourage and facilitate effective international co-ordination of the relief actions referred to in paragraph 1 (API Art. 70.5).
- Right of access has become a core principle of humanitarian relief for victims of international and non-international armed conflicts. This principle was enshrined in the study on the rules of customary international humanitarian law published by the ICRC in 2005. These rules are binding on all the parties to the conflict, even those who have not signed or cannot sign the conventions, such as non-state armed groups.
- Rule 55 of the customary IHL study prescribes that “the parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control,” while Rules 56 recalls that “the parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted.” Those rules are applicable in international and non-international armed conflicts.
The only limitation it may impose is to require that the humanitarian organization or the protecting power control the delivery of supplies, so as to ascertain that they are to be used for the population in need (GCIV Art. 59).
Access to Victims in Noninternational Armed Conflicts
If the civilian population is suffering undue hardship owing to a lack of supplies essential for its survival, such as foodstuffs and medical supplies, Additional Protocol II to the Geneva Conventions, Relating to the Protection of Victims of Non-International Armed Conflicts, reaffirms the principle of free passage of supplies that are of an exclusively humanitarian and impartial nature (APII Art. 18).
It also reaffirms that medical personnel must enjoy freedom of movement: whenever circumstances permit, and particularly after an engagement, all possible measures must be taken, without delay, to search for and collect the wounded and sick and to protect them and ensure their adequate care (APII Art. 8).
Although this Protocol does not give additional details, the principles it reaffirms can be interpreted using the more specific provisions set forth in the context of international armed conflicts (see above).
The Right of Access Established by UN Resolutions
The rules of humanitarian law concerning the right of access to victims of conflicts have been included in a number of UN resolutions, adopted during natural disasters or similar emergencies or disasters caused by humankind. Humanitarian law only applies to situations of armed conflict.
UN resolutions reaffirming the right of access to victims of disasters fill a juridical void when they concern events that occur in times of peace. But in times of war, such resolutions risk weakening existing law if they are used to avoid officially recognizing a situation of conflict at a diplomatic level, or if they set forth requirements that are inferior to those imposed by humanitarian law.
These resolutions’ force of law does not make them mandatory for all States, unless they are adopted by the Security Council under Chapter VII of the UN Charter.
The resolutions do not establish a “right of humanitarian intervention.” In fact, they reaffirm the sovereignty, territorial integrity, and national unity of States and recognize that it is the responsibility of each State to take care of the victims of natural disasters and similar emergency situations that take place in its territory.
The resolutions account for the fact that, in such situations, massive relief must be delivered rapidly to limit the number of dead, and that international organizations and NGOs may be able to play a major and positive role in such relief actions. For this reason, the resolutions invite all States that need such assistance to facilitate the implementation of humanitarian assistance operations by international organizations and NGOs. In particular, this applies to “the supply of food, medicine or health care, for which access to victims is essential” (General Assembly Resolution A/RES/43/131 of 8 December 1988).
Sometimes, to facilitate such access, the UN General Assembly suggests creating “relief corridors.” In such cases, it asks for the cooperation of neighboring States (General Assembly Resolution A/RES/45/100 of 14 December 1990). The Security Council has used many variations on the notion of “relief corridors”—for instance, for the conflicts in the Sudan, Iraq, Liberia, Angola, Somalia, and the former Yugoslavia. The terms used in the resolutions vary depending on the level of political pressure applied. In Resolution 688 (S/RES/688 of 5 April 1991), for instance, the Security Council “insists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq” and that the Iraqi government “make available all necessary facilities for their operations.”
The creation of, and respect for, relief corridors established by UN resolutions do not impose any concrete legal obligations on States. Furthermore, the relevant resolutions are not always adopted on the basis of Chapter VII of the UN Charter, which means that their provisions are not mandatory for States. Also, when they apply to situations where there is a conflict that is more or less recognized, they do not systematically refer to the real obligations set forth by humanitarian law.
In general, such resolutions have been adopted in the context of larger peacekeeping operations, supported by the use of international force, as was the case in Iraqi Kurdistan or Somalia. Hence, they gave the impression of imposing mandatory access to victims, without taking on any of the protection obligations that are foreseen by humanitarian law for the benefit of victims.
▸ Humanitarian and relief personnel ▸ International humanitarian law ▸ Intervention ▸ Medical duties ▸ Peacekeeping ▸ Protected objects and property ▸ Protected persons ▸ Protecting powers ▸ Relief ▸ Right of humanitarian initiative
For Additional Information: Law in Humanitarian Crises—Access to Victims: Right to Intervene or Right to Receive Humanitarian Assistance? Luxembourg: European Commission, 1995.