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Right of Humanitarian Initiative
International humanitarian law (IHL) in general and the Geneva Conventions in particular, establish obligations for belligerents and rights for persons who may be victims of the violence engendered by situations of conflict. The main obligations undertaken by the parties to a conflict are to refrain from committing acts that are prohibited and to fulfill their responsibilities toward civilians and other persons protected by IHL.
To further protect or assist these persons, international humanitarian law confers a right of initiative to the International Committee of the Red Cross (ICRC) and other impartial humanitarian organizations, entitling them to offer their services and act in the absence of law and rights. The Geneva Conventions forbid parties to the conflict to refuse such services, unless the parties can demonstrate that they are not needed, and also forbid parties to regard offers of services as interference in their internal affairs.
The laws also establish punishment that can be imposed in case IHL is violated.
Unfortunately, these obligations and sanctions are not enough to guarantee the daily protection and survival of populations at risk, which is the main objective of IHL. Hence, it is very important that humanitarian and relief organizations know their rights and obligations under international humanitarian law and are able to provide aid and protection to the populations in danger along this fundamental spirit: humanitarian initiative and action must precede humanitarian law.
International humanitarian law thus creates a balance between judicial protection and immediate concrete initiatives to safeguard the lives and interests of the persons protected by IHL.
The drafters of, and parties to, the Geneva Conventions recognized the value of having neutral intermediaries (e.g., humanitarian organizations) play a role in situations of conflict.
International humanitarian law does not rely only on justice and tribunals to enforce the respect for its provisions and punish violations thereof. It is a law of action that seeks to preserve life in situations of emergency. To this effect, it entrusts impartial humanitarian organizations with the responsibility of intervening to help protect individuals and populations in danger.
In addition to the specific provisions defending relief and protection actions and duties, the Geneva Conventions entitle the ICRC and other impartial humanitarian organizations to a general right of initiative (GCI–IV Common Art. 3). Concretely, the ICRC and NGOs can conceive of and initiate the kinds of actions that will best ensure protection for and assistance to victims. The Geneva Conventions specify that such activities may in no circumstances be regarded as interference in the internal affairs of a State. Parties to the conflict must facilitate rapid and unimpeded passage of all relief supplies, equipment, and personnel (API Art. 70, Rule 55 of the 2005 ICRC customary IHL study).
International humanitarian law thus reinforces the rights of humanitarian organizations in situations of conflict. If these organizations have poor knowledge of these laws, they risk weakening not only their own rights but also those of the individuals they seek to assist.
Impartial humanitarian organizations have several advantages over other actors: they have the trust of the belligerents (having negotiated their presence with them), their objective is to protect non-combatants, and they have the means to provide relief directly and efficiently to populations threatened by shortages or violence. Thus, they already play an official role in the system of protection foreseen by the law of armed conflict. The Geneva Conventions make direct reference to protecting powers or their substitutes, neutral and impartial intermediaries, the ICRC and any other impartial humanitarian organization, relief societies, and so on.
Such organizations have rights detailed explicitly in the Geneva Conventions. Their general right of initiative extends to any humanitarian activity or issue, which means that they also can offer their services for activities and in situations that are not expressly provided for in the Geneva Conventions or their Additional Protocols.
The Right of Initiative
The “right of initiative” itself is clearly established in Common Article 3 to the four Geneva Conventions and is reiterated in other articles of international humanitarian law (GCI–III Art. 9, GCIV Art. 10, API Art. 81, and APII Art. 18).
This right entitles any impartial humanitarian organization (the ICRC is mentioned explicitly as being such an organization) to offer its services in the context of a conflict. States Parties to the Conventions undertake not to regard such acts as interference in their internal affairs or as “unfriendly acts,” and, in fact, they must facilitate rapid and unimpeded passage of all relief supplies, equipment, and personnel (API Art. 70). They may not refuse such offers for political motives or reasons related to the conflict.
The provisions establishing this right are aimed at ensuring that States do not interpret and apply the rules set forth by the Geneva Conventions in ways that limit or infringe on the protection to which the victims of conflicts are entitled. Thus, one of the Geneva Conventions’ goals is to free humanitarian organizations from unnecessarily restrictive interpretations of humanitarian law’s provisions. For this reason, they posit that States must not use or interpret any of the Conventions’ provisions in a way that constitutes an “obstacle to the humanitarian activities which the ICRC or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief” (GCI–III Art. 9, GCIV Art. 10).
Hence, humanitarian law—and in particular, the Geneva Conventions—grants a right of initiative—known as the “right of humanitarian initiative”—to the ICRC and any other impartial humanitarian organization. This seems to exclude other actors wishing to undertake humanitarian actions, such as States.
The ICRC reinforces its own right of initiative in its statute, which authorizes it to “take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution” (Art. 4.2 of the ICRC Statute).
For Additional Information: ICRC. Human Rights and the ICRC: International Humanitarian Law . Geneva: ICRC, 1993.
Mackintosh, Kate. “Beyond the Red Cross: The Protection of Independent Humanitarian Organizations and Their Staff in International Humanitarian Law.” International Review of the Red Cross 865 (March 2007): 113–30.