In the context of armed conflicts, humanitarian action carried out for the relief and protection of populations in danger is supplemented by a variety of humanitarian actors. The legal protection to which the personnel involved is entitled varies depending on the personnel’s status. In any given situation, relief personnel may have very different standings. For instance, volunteers working for international or local NGOs may find themselves working alongside International Committee of the Red Cross (ICRC) personnel or staff from one of the UN Agencies. They all, in turn, work with local staff, who are nationals of the States party to the conflict.
International humanitarian law protects these personnel as civilians. They have specific rights that allow them to accomplish relief actions in times of conflict. Conventional humanitarian law applicable to international armed conflicts makes distinctions between medical personnel, relief personnel, personnel qualified to carry out the protection power’s mission, and civil defense personnel, distinctions that do not exist for non-international armed conflicts. Nonetheless, customary international humanitarian law and international criminal law protect these personnel whatever the nature of the conflict.
UN personnel’s diplomatic status gives them specific rights.
These personnel must not be the targets of deliberated or direct attacks. However, their activities in the context of armed conflict put them at risk.
The Growing Threat against Humanitarian Personnel
The development of humanitarian action in times of conflict led to an increase of victims among relief and medical personnel working for NGOs, the ICRC, and the UN. Attacks against personnel working in UN programs may also be linked to their conflict management mandate.
Between 2003 and 2010, just within the UN system, 254 civilian staff were killed. Hundreds of hostages have been taken as well. When seventeen UN civilian personnel were killed in 2003 in the UN headquarters bombing in Baghdad, the number of civilian staff killed in the line of duty exceeded that of UN military personnel for the first time in UN history. The fate of others—some of them detained or missing since the 1970s—remains unknown.
Condemning such attacks, the Security Council has recalled that the responsibility for the safety of UN missions rests with host countries and parties to the conflict. On 9 December 1994, the UN General Assembly adopted the Convention on the Safety of the United Nations and Associated Personnel and, on 8 December 2005, an Optional Protocol to this Convention, which entered into force on 19 August 2010 (twenty-nineStates Parties as of June 2015).
Today, the issue of protection of humanitarian actors is addressed in periodic reports examined by the United Nations Security Council (infra VI).
Medical Personnel
The Geneva Conventions establish a special system of protection for medical personnel, in both internal and international armed conflicts. First, such persons must be protected at all times. To help identify them—so as to facilitate this protection—they are authorized to wear a specific protective emblem (API Arts. 8, 15; APII Art. 9).
➔ Distinctive (or protective) emblems, signs, or signals; Medical personnel
Humanitarian law does not offer special immunity to relief and medical personnel. Immunity is designed to protect diplomatic activities, not humanitarian ones.
However, the 1949 Geneva Conventions and their 1977 Additional Protocols recognize several categories of personnel involved in relief actions and grant them both general protection (that to which all civilians are entitled) and specific rights in the function of their mission. For instance, to protect medical services, members of medical personnel are authorized to use the protective emblem of the Red Cross or Red Crescent, and a combatant’s failure to respect such emblems is a war crime.
With regard to persons involved in UN humanitarian operations, several conventions exist with respect to the privileges and immunities of UN personnel, but their coverage is restricted to certain UN employees and is not comprehensive. Furthermore, their provisions are inadequate to address the characteristics of recent UN operations, which combine both military and humanitarian components.
The Statute of the International Criminal Court (ICC), which was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002, expanded the definition of the categories of personnel engaged in humanitarian or peacekeeping operations against whom a deliberate attack is considered a war crime. These categories are:
- medical personnel and persons using the distinctive emblem of the Red Cross, and
personnel involved in humanitarian assistance or peacekeeping missions, as long as their mandate entitles them to the protection given to civilians under the international law of armed conflict. The authors of such an attack, whether it was carried out during an international or non-international armed conflict, may be prosecuted either by national courts or the ICC (Arts. 8.2.b.iii, 8.2.b.xxiv, 8.2.e.ii, and 8.2.e.iii of the ICC Statute).
Personnel Qualified to Carry Out the Protecting Power’s Mission
The implementation of humanitarian law depends on a specific system meant to monitor the obligations of each party to a conflict. This responsibility is entrusted to a protecting power, whose representatives are individuals (known in law as “natural persons”) who have a right of access to, and authorization to visit, protected persons and populations threatened by an armed conflict. If the parties to a conflict cannot agree on who to designate as the protecting power, the ICRC has a mandate to act as the substitute body and take on these responsibilities.
States are under the obligation to train qualified personnel to facilitate the application of the Conventions and to participate in the activities of the protecting powers (API Art. 6). The Geneva Conventions specify that these persons are subject to the approval of the government authorities on whose territory they are to carry out their duties. The parties to the conflict must facilitate the tasks of these representatives who may not, in any case, exceed their mission. In particular, these representatives must take into account the “imperative necessities of security of the State wherein they carry out their duties” (GCIV Art. 9).
The personnel of the protecting power is made up of representatives of other States not party to the conflict, who enjoy the status of diplomat. In practice, these functions are taken on by the delegates of the ICRC.
Civil Defense Personnel
The “personnel” of civil defense organizations, in situations of conflict, refers to the members of national civil defense organizations who are assigned exclusively to humanitarian tasks intended to protect the civilian population against possible dangers, to help it recover from the immediate effects of hostilities or disasters, and to provide the conditions necessary for its survival. It includes the persons assigned—by the competent authority of the party concerned—exclusively to the administration of these organizations (API Art. 61).
The civil defense personnel of such missions therefore belong to one of the parties to the conflict. It is possible, however, for personnel of civil defense organizations from neutral States, States not parties to the conflict, or international coordinating organizations to carry out a civil defense mission, with the consent and under the control of a party to the conflict (API Art. 64). Such personnel must be respected and protected (API Art. 62). In occupied territories, the occupying power may disarm the members of civil defense personnel but may in no way divert their mission or compel, coerce, or induce such organizations to perform their tasks in any manner prejudicial to the civilian population (API Arts. 63, 64).
Relief Personnel
The protection of humanitarian and relief personnel has become a mandatory rule of customary law, binding on all parties to international and non-international armed conflicts. The study on the rules of customary international humanitarian law published by the ICRC in 2005 provide that “humanitarian relief personnel must be respected and protected” (Rule 31) and that “objects used for humanitarian relief operations must be respected and protected” (Rule 32).
International Armed Conflicts
Relief actions are foreseen for the benefit of civilians who are not adequately provided with the supplies and foodstuffs essential to their survival (GCIV Arts. 23, 55, and 59; API Arts. 69–71). They include the presence of relief personnel. When the parties to the conflict give their permission for relief actions, they may make it conditional on the requirement that the distribution of this assistance be made under the local supervision of a protecting power or substitute thereof (API Art. 70).
In practice, the absence of any protecting power in most relief operations puts an additional burden of responsibility on relief personnel. They must be able to perform certain protection and monitoring duties in their role as substitute protecting power. These include, for example, the responsibility of ensuring that the relief is distributed in a humane and impartial manner and for the sole benefit of the civilian population. Without this guarantee, the relevant party to the conflict could refuse relief shipments.
The High Contracting Parties must allow and facilitate rapid and unimpeded passage of all relief supplies and personnel, even if such assistance is destined for the civilian population of the adverse party (API Art. 70).
- Where necessary, relief personnel and equipment may form part of the assistance provided in a relief action, in addition to the actual relief supplies. Such persons are mainly in charge of the transportation and distribution of these supplies. Their participation is subject to the approval of the party on whose territory the duties will be carried out.
- Such personnel must be respected and protected (API Art. 71).
- Relief personnel may not exceed the terms of their mission, under any circumstances. In particular, they must take into account the security requirements of the party in whose territory they are carrying out their duties. Any personnel that does not respect these conditions may see its mission terminated (GCIV Art. 9, API Art. 71).
Non-international Armed Conflicts
Common Article 3 to the four Geneva Conventions recalls that the ICRC and any other impartial humanitarian organizations retain a right of humanitarian initiative.
Additional Protocol II to the Geneva Conventions provides that relief societies may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. It also provides that if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population that are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned (APII Art. 18). Additional Protocol II does not give a specific status to any clearly identified personnel, except by asserting expressly that medical personnel must be protected in non-international armed conflicts (APII Art. 9). However, it does posit that relief actions—in particular, medical ones—may in no way be regarded as hostile acts or acts in support of the adverse party. This is especially important in non-international armed conflicts, when the distinction between combatant and civilian is sometimes difficult to make and which, for this very reason, tend to become all-encompassing wars in which even relief actions are considered acts of treason or disloyalty.
Customary international humanitarian law unified the core principles of protection of relief personnel and extended its application to non-international armed conflicts. Besides, the Statute of the ICC considers that deliberate attacks on these personnel constitute a war crime in international and non-international armed conflicts.
United Nations Personnel Involved in Relief Action
The field staff working for the different UN humanitarian agencies consists mostly of employees who do not benefit from the status and immunities provided for diplomats by the Vienna Convention on Diplomatic Relations of 18 April 1961. They also generally do not benefit from the immunities provided for the officials and experts of the UN that are set forth in the Convention on the Privileges and Immunities of the United Nations of 13 February 1946. The aim of the 1946 Convention is to protect UN personnel from national pressures and thereby enforce respect for the “exclusively international character” of the organization’s mission, per Article 100 of the UN Charter. However, it does not provide any means of ensuring the protection and security of this personnel from dangers it may incur in the course of its relief actions.
On 9 December 1994, the UN General Assembly adopted the text for a Convention on the Safety of United Nations and Associated Personnel (A/RES/49/59). This Convention entered into force on 15 January 1999 and had ninety-two States Parties as of June 2015. The issue confronted by this new set of rules is how to address attacks against UN and NGO personnel engaged in UN peacekeeping or peace-building operations from a legal perspective, and how to prevent such attacks. One problem posed by the Convention is that the same text is meant to protect both military personnel engaged in UN peacekeeping operations and humanitarian personnel engaged in relief operations. Currently, this ambiguity can only be circumvented by referring to the statuses granted to different categories of persons protected under humanitarian law, which also provides for concrete but separate protection for combatants that can be applied to military personnel involved in UN operations.
Furthermore, this Convention does not cover any coercive activities in which the UN might engage. The text indicates that humanitarian law is applicable to military personnel deployed in the context of operations authorized by the UN Security Council acting under Chapter VII of the Charter. Hence, the Convention only concerns peacekeeping operations in the strictest sense of the term. On 8 December 2005, the Optional Protocol to the 1994 Convention was adopted (A/60/518). It broadens the application of the Convention. It covers the UN and associated personnel involved in humanitarian relief and political and development aid missions, in addition to the personnel normally involved in peacekeeping or peace-building operations. It expressly covers NGO personnel who are UN implementing partners. This Protocol entered into force on 19 August 2010 and binds twenty-nine States Parties as of June 2015.
➔ Collective security; Peacekeeping; Security Council of the UN
Remedies and Sanctions for Humanitarian and Relief Personnel
In 2003, the Security Council of the United Nations expressed its strong condemnation of all forms of violence toward those participating in humanitarian operations and encouraged the Secretary-General to bring to the attention of the Security Council situations in which humanitarian assistance is denied as a consequence of violence directed against humanitarian personnel and the United Nations and its associated personnel (Security Council Resolution 1502). This Resolution was preceded by several reports from the Secretary-General on the protection of civilians and several Resolutions of the Security Council insisting that serious violations of humanitarian and human rights law constitute a threat to international peace and security.
The Statute of the International Criminal Court (ICC) that was adopted in July 1998 and entered into force on 1 July 2002 considers intentionally directing attacks against personnel, installations, material, units, or vehicles involved in a humanitarian assistance or peacekeeping mission a war crime, in accordance with the Charter of the United Nations. Persons participating in peacekeeping operations may enjoy this protection if they are “entitled to the protection given to civilians” under humanitarian law (meaning that they are not considered combatants). If these conditions are met, directing intentional attacks against such persons is a war crime that can be judged by national courts or, failing that, by the ICC. This definition of war crimes applies to both internal and international armed conflicts (Arts. 8.2.b.iii and 8.2.e.iii of ICC Statute). Such acts, as well as willful killings, torture, and hostage taking of relief personnel (Arts. 8.2.a.I, II, XIII), may be prosecuted by domestic courts and, under the principle of complementarity, by the International Criminal Court.
See also: ➔ Distinctive (or protective) emblems, signs, or signals; Immunity; International Criminal Court; Medical personnel; Peacekeeping; Protection; Safety; War crimes/Crimes against humanity
📖 For Additional Information:
- Baccino-Astrada, Alma. Manual on the Rights and Duties of Medical Personnel in Armed Conflicts . Geneva: ICRC/League, 1982.
- Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chap. 6.
- Fisher, David. “Domestic Regulation of International Humanitarian Relief in Disasters and Armed Conflict: A Comparative Analysis.” International Review of the Red Cross 866 (June 2007): 345–72.
- Henckaerts, Jean-Marie, and Louise, Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, esp. part 2, chaps. 7 and 8.
- “Humanitarian Actors.” International Review of the Red Cross 865 (March 2007): 5–229.
- Loye, Dominique, and Robin Coupland. “Who Will Assist the Victims of Use of Nuclear, Radiological, Biological or Chemical Weapons—and How?” International Review of the Red Cross 866 (June 2007): 329–44.
