Thematic index Alphabetical index

Responsibility

The notion of responsibility is an essential part of implementing and respecting the law. A right is most often tied to a reciprocal obligation. Failure to comply with this obligation may result in civil or criminal liability for the individual concerned. Criminal liability can only be incurred if the failure to comply with a specific obligation has been defined as a crime or criminal offense as such by national or international criminal law. Civil liability allows for financial compensation for damage caused to others by the wrongful conduct of an individual or organization.

Criminal responsibility is primarily individual, including for crimes recognized under international criminal law (ICL) such as war crimes, crimes against humanity, genocide, or aggression. A legal entity, with the exception of States, may sometimes be held criminally responsible through its representatives, but this possibility is limited to certain specific offenses.

The individual criminal responsibility of heads of state and government, diplomatic representatives, and other agents of the state or international organizations is limited before national courts by specific jurisdictional immunity rules. However, these immunities do not apply in proceedings before the International Criminal Court (ICC) with respect to war crimes, crimes against humanity, and genocide.

There is another specific regime of international responsibility applicable to States in the event of a breach of their international commitments towards another State or acts considered internationally unlawful. The responsibility of the State is incurred by the actions of its agents, in particular its armed forces, but also by individuals or groups established to be acting de facto under the control of the State.. The International Court of Justice (ICJ) is the body established by the UN Charter to adjudicate such questions of responsibility between the States concerned and to rule on reparation for any damage caused to other States by their wrongful acts.

Respect for human rights also rests on the responsibility of States with regard to the commitments they have made to each other concerning respect for the fundamental rights of their nationals and other persons present in the territories over which they exercise effective control. Respect for these commitments is upheld by a number of instruments that provide for various forms of recourse, either judicial or not, before various national and international institutions. State responsibility for violations of international human rights, which is still at an embryonic stage. It should not be confused with mechanisms allowing for the establishment of individual criminal responsibility or state responsibility in the context of inter-state relations.

Respect for international humanitarian law (IHL), applicable in situations of armed conflict is based on all of these mechanisms of state and individual responsibility. Indeed, IHL contains several specific obligations incumbent on States both as parties to the Geneva Conventions and their additional protocols and as belligerents in international or non-international armed conflicts.

The responsibility of the State is based on a dual obligation to respect and ensure respect for IHL (I). IHL also imposes and defines the individual criminal responsibility of the various hierarchical actors involved in armed conflicts. It defines the personal and criminal responsibility of military commanders and other superiors (II) and also establishes the personal criminal responsibility of combatants even if they act in accordance with the orders of their superiors (III). These different responsibilities may be called into question in the context of the remedies provided for by IHL in the event of grave breaches and war crimes.

The responsibility of humanitarian organizations and personnel is not expressly addressed by IHL, but it nevertheless arises in concrete terms in humanitarian relief operations (IV). The status of relief actor in situations of armed conflict imposes professional ethical obligations recognized by IHL to limit involuntary participation and other forms of complicity or normalization of these crimes. Humanitarian actors also have specific obligations as witnesses to serious violations of IHL and mass crimes. Finally, States sometimes decide to criminalize humanitarian relief activities and hold humanitarian actors criminally responsible on the grounds that such relief could provide material support for the criminal or terrorist activities of certain groups. In all such cases, IHL provides for rules of humanitarian and medical immunity and impunity to guarantee the independence and impartiality of humanitarian actions in accordance with IHL.

The case law of international courts supplements and clarifies certain elements constituting these various forms of responsibility.

➔ Duty of Commanders;Humanitarian principles; International Criminal Court; International Criminal Tribunals; Penal sanctions in humanitarian law; Protection; Respect for international humanitarian law; War crimes/Crimes against humanity

I. The Responsibility of States under International Humanitarian Law

IHL contains a number of obligations which, if breached, give rise to the international responsibility of States. This responsibility is distinct from the individual responsibility of State agents, even when acting under orders.

A. Rules of IHL regarding State responsibility

State responsibility for failing to comply with obligations under IHL may be invoked in front of the ICJ by another State that have suffered harm as a result of such violations and may result in reparations. State failure to prosecute perpetrators of war crimes, crimes against humanity, and genocide at the national level may, under certain circumstances, trigger the jurisdiction of the ICC. Indeed, the Court’s jurisdiction over a situation is established by a State’s ratification of the Rome Statute or by a binding decision of the UN Security Council (UNSC) if that State is unwilling or unable to prosecute alleged perpetrators (art. 17 of the Rome Statute).

Building on the general obligation of the State to respect and ensure respect for IHL as provided for in their first article, the Geneva conventions and its protocols draw up a list of related, specific, and concrete obligations of the State. These IHL treaty provisions on State responsibility have acquired the status of customary IHL (CIHL). They therefore apply in all situations of international and non-international armed conflict, vis-à-vis all State and non-State parties to the armed conflict.

Conventional and customary IHL provide the following obligations that rest on States in connection with their participation in international and non-international armed conflicts:

  • All States Parties to the Geneva Conventions “undertake to respect and to ensure respect for [IHL] in all circumstances” (GCI-IV, Common art. 1; API, arts. 1, 80(2); CIHL Rule 139).
  • In situations of serious violations of the Conventions or its additional protocols, States that are high contracting Parties to these conventions undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the UN Charter (API, art. 89).
  • All States are under the obligation to disseminate IHL texts widely among their armed forces and to civilians, in time of peace and in time of war (GCI, art. 47; GCII, art. 48; GCIII, art. 127; GCIV, art. 144; API, arts. 83(1), 87(2); APII, art. 19). This obligation includes incorporating the rules of humanitarian law into military regulations, instructions for armed forces, armed forces training manuals, and the code of military discipline, and ensuring that commanders are trained in these rules. States should also disseminate IHL as widely as possible to include its study in their civilian education programmes so that IHL principles may become known to the entire population.
  • Each State is required to make legal advisers available, as necessary, to advise military commanders at the appropriate level on the application of IHL (CIHL Rule 141).
  • All States and parties to the conflict must provide instruction on IHL to their armed forces. (CIHL Rule 142)
  • All States must encourage the teaching of IHL to the civilian population. (CIHL Rule 143)
  • Political and military authorities have the obligation to take all necessary measures to ensure that the obligations foreseen by IHL are respected (GCI, art. 49; GCII, art. 50; GCIII, art. 129; GCIV, art. 146 and API, arts. 80(1), 86 and 87).
  • All States are under the obligation to enact any legislation necessary to provide effective criminal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Geneva Conventions (GCI, art. 49, GCII, art. 50, GCIII, art. 129 and GCIV, art. 146).
  • All States are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, any of the grave breaches of the Geneva Conventions and shall bring such persons before their own courts (GCI, art. 49, GCII, art. 50, GCIII, art. 129, GCIV, art. 146 and API, art. 86). This is regardless of the nationality of the accused. This may also include members of their own armed forces.
  • All States are responsible for all acts committed by members of their armed forces. Furthermore, if a State violates IHL, it may be held accountable and be compelled to pay compensation (API, art. 91).
  • A State may not absolve itself or any other State of any liability incurred with regard to grave breaches of the Geneva Conventions committed by their authorities, their nationals, or in their name (GCI, art. 51, GCII, art. 52, GCIII, art. 131 and GCIV, art. 148).
  • A State is responsible for violations of IHL attributable to it, including: (a) violations committed by its organs, including its armed forces; (b) violations committed by persons or entities it empowered to exercise elements of governmental authority; (c) violations committed by persons or groups acting in fact on its instructions, or under its direction or control; and (d) violations committed by private persons or groups that it acknowledges and adopts as its own conduct (CIHL Rule 149).
  • A State responsible for violations of IHL in the context of an international or a non-international armed conflict is required to make full reparation for the loss or injury caused (CIHL Rule 150).
  • All States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (CIHL Rule 158).
  •  All States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects (CIHL Rule 161).

⚖.B. Case law of international courts on State responsibility

1. State Responsibility for the conduct of its agents and organs

In a number of cases, the ICJ has ruled that the conduct of an organ of the State always triggers the responsibility of that State, without the need to prove that this group acted under the orders of the State or that it went beyond those orders.

  • The ICJ has affirmed that “[a]ccording to a well-established rule of international law, which is of customary character, the conduct of any organ of a State must be regarded as an act of that State” (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999, I.C.J. Reports 1999, p. 87, para. 62; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment, 19 December 2005, I.C.J. Reports 2005, p. 168, para. 213).
  • In the case Armed Activities on the Territory of the Congo the ICJ held that “the conduct of individual soldiers and officers of the UPDF [Ugandan People’s Defence Forces (a group present in the DRC)] is to be considered as the conduct of a State organ […] by virtue of the military status […]. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit” (para. 213). In the same case, the ICJ held that whether the UPDF soldiers acted contrary to orders or exceeded their authority was also irrelevant for the attribution of their conduct to Uganda. The Court asserted that “[a]ccording to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces” ( Democratic Republic of the Congo v. Uganda, 19 December 2005, I.C.J. Reports 2005, para. 214).

2. State Responsibility for the conduct of nonState armed groups operating under its control

The issue of the responsibility of the State for actions perpetrated by non-State armed groups acting under its control was raised in three major cases examined by the ICJ: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, p. 14, paras. 109-116; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007, p. 43, paras. 391-407 and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, I.C.J. Reports 2005, p. 168, paras. 157-161, 213-214, 220, 245, 248-250, 277, 300 and 301.

These decisions specify the different levels of control-total, effective, or overall- required for the acts of a non-State armed group to be legally attributed to a State.

  • In the case of Nicaragua v. United States of America, the ICJ had to “determine […] whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (para. 109). The Court held that the participation of a State in the financing, organising, training, supplying, and equipping of a non-State armed group is insufficient for the purpose of attributing the acts or violations of human rights and IHL committed by this group to the State concerned (para. 115). For such conduct to give rise to the legal responsibility of the State “it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed” (para. 115). This “effective control” implies the total dependency of the group on the State, or that the State has directly ordered the group to commit the alleged criminal acts. If this degree of control has not been reached, the State remains responsible for its own conduct, notably if the support to the armed group is considered unlawful and if the State was aware of the violations committed by this group (para. 116).
  • In the case of Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ had to determine whether acts of genocide committed during the war in the former Yugoslavia by non-State armed groups which were not organs of Serbia and Montenegro could be attributed to that State and give rise to its international responsibility by virtue of the control it exercised over those groups. The ICJ developed the arguments it used in the case of Nicaragua v. United States of America and held that “persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs […] provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument” (para. 392). The Court recalled that the notion of “complete dependence” and the absence of autonomy are required for a non-State armed group to be assimilated, de facto, to a State agent, and consequently giving rise to the responsibility of the latter for the committed acts (para. 393). The Court added another case where the responsibility of the State can be triggered. In the case where the criteria of “complete dependence” does not exist, the acts of a non-State armed group can still be attributed to the State concerned if it is proven that they acted in accordance with that State’s instructions or under its “effective control” (para. 400). In this decision, the ICJ rejected the validity of the concept of “overall control” developed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case (paras. 404-406).
  • In the case of the Democratic Republic of the Congo v. Uganda, the ICJ listed the various criteria and forms of the State responsibility in the case where a State supports the activities of non-State armed groups operating from its territory in the territory of a neighbouring State. However, it denied such responsibility in cases where the State merely breaches its duty of vigilance and tolerates these acts or is unable to control these groups on its territory (para. 300).

II. Responsibility of Commanders under International Humanitarian Law

IHL recognises the hierarchical nature of armed forces and the discipline imposed by commanders. It therefore imposes certain specific obligations on commanders and, in certain situations, holds them individually criminally responsible not only for their own acts and omissions they committed, but also for those of their subordinates or persons under their effective control.

☞ The principle of authority is coupled with that of responsibility. 

The responsibility of commander covers both acts and omissions .

The commander must ensure that combatants under his responsibility are familiar with the rules of humanitarian law (PAI Art. 87.2 ).

IHL holds commanders criminally responsible if they:

  • give orders to their subordinates that violate IHL;
  • allowing their subordinates to commit such violations;
  • failing to punish subordinates who violate IHL out of their own initiative;
  • failing to prevent such violations if they knew, or had information that should have enabled them to conclude, that such a breach was being committed or was going to be committed (GCI, art. 49, GCII, art. 50, GCIII, art. 129, GCIV, art. 146; API, art. 86(2) and CIHL Rules 152 and 153).

The commanders may be held accountable before competent national courts, before foreign courts (by virtue of universal jurisdiction), or before the ICC.

The responsibility of commanders and their criminal responsibility for crimes committed by subordinates under certain conditions have been recognised as a customary rule of IHL (CIHL) and by ICL, in particular by the Rome Statute of the ICC. Under the ICC, criminal responsibility of military commanders is extended to other superiors, including civilians (ICC Statute, Article 28). It is reflected in the following rules of IHL and ICL:

  • Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders in the context of international and non-international armed conflicts (CIHL Rule 152).
  • Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes in the context of international and non-international armed conflicts and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible CIHL Rule 153).
  • Article 28 of the Rome Statute reinforces the criminal responsibility of commanders and other superiors for crimes committed by subordinates as a result of the superior’s failure to prevent and punish such crimes. It extends the criminal responsibility of commanders and other superiors, to genocide, crimes against humanity, war crimes and the crime of aggression, whether committed in non-international or international armed conflicts. It applies equally to all persons without any distinction based on official capacity. It thus makes it possible to hold military commanders who exercise official functions or act as de facto authorities criminally responsible. The same applies to other superiors, including civilians (Articles 27 and 33 of the Rome Statute).

B. Case law of international courts

In addition to the provisions of IHL and the ICL rules, the decisions of international criminal courts have helped to clarify the practical application of the criteria and conditions relating to the criminal responsibility of commanders or superior officers, as well as the aggravating and mitigating circumstances associated with such situations.

International criminal courts have required four elements to be proven beyond reasonable doubt before a person can be held responsible, as a superior, for crimes committed by subordinates:

1. The existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying crime

2. The superior’s knowledge of the fact that his subordinate had committed or was about to commit the crime;

3. The superior’s failure to prevent the commission of the crime or to punish the perpetrators;

4. The causal link between the superior’s failure and the commission of the crime. This fourth element is an explicit requirement in ICL provisions, notably in article 28(b) of the Rome Statute, although it is not mentioned or required by the rules of IHL.

The case law of international courts provides clarification regarding the criminal responsibility of commanders. These elements are presented in the section specifically dedicated to the duties of commanders.➔ Duty of commanders

III. Responsibility of Individuals under International Humanitarian Law

International humanitarian law establishes the individual responsibility of combatants and other persons taking part in hostilities (A). Case law from the courts clarifies the content and scope of this responsibility, including when such persons act on the orders of a superior (B).

A. Individual responsibility under international humanitarian law

All persons of legal age of majority are individually criminally responsible for any grave breaches of the Geneva Conventions committed by them, regardless of the circumstances. Combatants can be held criminal responsible for their act even in case they obey orders of a superior. This also applies to conduct amounting to war crimes, crimes against humanity, genocide and the crime of aggression under the Rome Statue of the ICC.

☞ Orders from a superiors

IHL recognises that combatants generally operate within a hierarchical organisation or unit. It therefore imposes specific responsibilities on commanders in the first instance.

However, the fact that a combatant acted pursuant to superior orders does not exempt him or her from individual criminal responsibility incurred for grave breaches of the Geneva Conventions. Individuals therefore remain personally accountable, even when acting under orders from superiors.

IHL establishes the individual criminal responsibility of person for violations of IHL, even when acting under the orders of superiors. This is reflected in both the conventional and CIHL. (art. 3 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land; GCI, art. 49; GCII, art. 50; GCIII; art. 129; GCIV, art. 146; API, 86(2) and 87; CIHL Rules 151, 154 and 155).

  •  Rule 151. Individuals are criminally responsible for war crimes they commit.
  • Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.
  • Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

Under ICL, individual criminal responsibility for violations of IHL and other international crimes is reflected at article 25 of the Rome Statute.

The Rome Statute also provides that “[t]he fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility.” While there are some grounds for excluding criminal responsibility exist in the case of war crimes, there are no exceptions in the case of genocide or crimes against humanity (art. 33(2) of the Rome Statute).

Judgments of international criminal courts confirm the restrictive interpretation of duress and superior orders as mitigating circumstances with respect to individual criminal responsibility (see infra Section III.B, Jurisprudence).

The Rome Statute clearly sets out the elements constituting individual responsibility for genocide, crimes against humanity, and war crimes: a person shall be criminally responsible and liable to punishment for a crime within the jurisdiction of the Court if he or she:

“(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.” (art. 25 of the Rome Statute).

The Rome Statute of the ICC provides for certain limited grounds for exemption from criminal responsibility (arts. 26, 30, 31 and 33). These provisions protect, for example, persons who were under the age of 18 at the time the acts were allegedly committed, persons who suffered from a mental disease or defect, or persons who acted in legitimate and proportionate self-defence. Necessity and duress may excuse conduct where there is a threat of imminent death or of continuing or imminent serious bodily harm, and when the person acts necessarily and reasonably to avoid that threat and does not intend to cause greater harm than that avoided (art. 31(1)(d) of the Rome Statute).

With respect to war crimes, the Rome Statute provides that a crime committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not exonerate that person from criminal responsibility unless the following conditions are met (art. 33 of the Rome Statute):

1. The person was under a legal obligation to obey the orders of the government or the superior in question;

2. The person did not know that the order was unlawful; and

3. The order was not manifestly unlawful.

The Rome Statute specifies that orders to commit genocide or crimes against humanity are manifestly unlawful and, as such, cannot be used to justify obedience. (art. 33(2) of the Rome Statute)

  • CIHL Rule 151 provides that individuals are criminally responsible for war crimes committed in the context of an international or a non-international armed conflict.
  • CIHL Rule 154 provides that every combatant has the duty to disobey a manifestly unlawful order. 
  • CIHL Rule 155 provides that obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew or should have known that the act ordered was unlawful because of the manifestly unlawful nature of the act ordered.

B. International case law on the liability of combatants

The case law of international courts provides clarification on the different levels of individual responsibility (1) in cases of obedience to orders from superiors or coercion (2) as well as other mitigating (3) or aggravating (4) circumstances that may be considered. It confirms the restrictive interpretation of coercion and superior orders as mitigating circumstances in matters of individual criminal responsibility.

1. Individual Criminal Responsibility of Combatants

International criminal courts have analysed the conditions under which perpetrators can be held criminally responsible for crimes under international law.

There is a two-stage test that must be satisfied in order to establish individual criminal responsibility. This test requires proof of (1) participation, i.e., that the conduct of the accused contributed to the commission of an unlawful act, and (2) knowledge or intent, i.e., that the actor was aware of his or her participation in a crime (see Prosecutor v. Clément Kayishema and Obed Ruzindana, Case no. ICTR-95-1-T, Judgment, 21 May 1999, para. 198 and Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case no. IT-04-82, Judgment, 19 May 2010, para. 66).

Individual criminal responsibility “is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting” (Prosecutor v. Jean de Dieu Kamuhanda, Case no. ICTR-99-54A-T, Judgment and Sentence, 22 January 2004, para. 588). See also Prosecutor v. Paul Bisengimana, Case no. ICTR-00-60-S, 13 April 2006, Judgment and Sentence, para. 31 and Prosecutor v. Miodrag Jokić, Case no. IT-01-42/1-S, Sentencing Judgment, 18 March 2004, para. 56 and Prosecutor v. Simić et al., Case no. IT-95-9T, Judgment, 17 October 2003, para. 135).

With respect to aiding and abetting a crime, “the individual criminal responsibility can be discussed under two distinct modes of responsibility: (i) aiding and abetting by tacit approval and encouragement, and (ii) aiding and abetting by omission proper” (Prosecutor v. Radoslav Brđanin, Case no. IT-99-36-A, Judgment, 3 April 2007, paras. 273-274).

The ad hoc International Criminal Tribunals have considered how superior orders may affect the criminal responsibility of the perpetrator (by increasing or decreasing that responsibility).

2. Duress and Superior Orders

Duress does not provide a complete defence for a soldier accused of a crime against humanity or a war crime involving the killing of innocent people. There is a clear difference between duress and the duty to obey superior orders. In the case of duress, the life of the accused must be in immediately danger if he refuses to carry out the order. There are three essential conditions for duress to be accepted as a defence to violation of IHL:

(1) the act charged must have been done to avoid an imminent danger which was both serious and irreparable.

(2) there was no reasonable possibility of escape.

(3) the means were not disproportionate to the evil (Prosecutor v. Dražen Erdemović, Case no. IT-96-22-T, Sentencing Judgment, 29 November 1996, para. 17).

  • In the Erdemovic case, the ICTY considered that the absence of moral choice is one of the essential components for considering duress as a complete defence. The mere duty to obey superior orders does not constitute duress. Facing a manifestly unlawful order, the duty was to disobey rather than to obey; “this duty to disobey could only recede in the face of the most extreme duress.” Such duress exists “in the face of imminent physical danger. This physical threat, understood in the case law as a danger of death or serious bodily harm, that must in some cases also meet the following condition: it must be clear and present or else be imminent, real and inevitable” (para18).

The existence of duress and superior orders must be assessed for each case, because “while the complete defense based on moral duress and/or a state of necessity stemming from superior orders is not ruled out absolutely, its conditions of application are particularly strict.” One must “examine whether the accused in his situation did not have the duty to disobey, whether he had the moral choice to do so or to try to do so.” (para19).

In its final judgement on that case the ICTY confirmed that the definition of duress is limited to extreme situations where “the accused had no other choice but to kill or to be killed “ (,Prosecutor v. Dražen Erdemović, Case No. IT-96-22-Tbis, Jugement, 5 March 1998, para. 17)..

  • This restrictive definition of duress was subsequently confirmed in the Mrda case (Prosecutor v. Darko Mrđa, Case no. IT-02-59-S, Sentencing Judgment, 31 March 2004, paras. 65-67). In this case the Trial Chamber refused to accept that orders from superiors and an atmosphere of hatred and propaganda alone could constitute duress. These circumstances may have had some influence on the accused’s criminal behaviour, but the Trial Chamber did not accept that they were such that the accused, even taking into account of his age and low rank, would have had no alternative but to participate in the massacre of some 200 civilians. The absence of any meaningful indication that the accused wished to disassociate himself from the massacre at the time of its commission prevented the Trial Chamber from accepting duress as a mitigating circumstance (para. 66). In that same case the ICTY confirmed that superior orders can only be considered as mitigating circumstances if the orders were not manifestly unlawful. If the orders were manifestly unlawful, the accused can only benefit from mitigating circumstances if he proves that he refused to obey the orders of his superiors and that this resulted in a direct threat to his life.(Prosecutor v. Darko Mrđa, Case No. IT-02-59-S, Sentencing Judgment, 31 March 2004, paras. 67-68).

3. Mitigating Circumstances

In addition to duress and superior orders, international criminal courts have recognised other mitigating circumstances. However, the reduce penalty resulting from applying mitigating circumstances should not diminish the gravity of the crime (Prosecutor v. Jean Kambanda, Case no. ICTR-97-23-S, Judgment and Sentence, 4 September 1998, paras. 36-37 and 56-58)

In several cases, tribunals took into account the following mitigating circumstances:

  • Substantial cooperation with the Prosecutor;
  • Surrendering to the authorities;
  • Admitting of guilt; •Demonstration of remorse towards the victims and the fact that the accused was not a de jure authority (Prosecutor v. Clément Kayishema and Obed Ruzindana, Case no. ICTR-95-1-T, Sentence, 21 May 1999, para. 20). •The personal circumstances of the accused may also be relevant: the absence of a criminal record, the character of the accused, the assistance given by the accused to the victims, the absence of authority in his official position and the fact that the accused did not personally participate in the killings (Prosecutor v. Georges Ruggiu, Case no. ICTR-97-32-I, Judgment and Sentence, 1 June 2000, paras. 59-80)
  • The post-conflict conduct of the accused was considered as a mitigating circumstance (Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case no. IT-02-60-A, Judgment, 9 May 2007, paras. 328, 330-331, 342 and 344).
  • The fact that the accused was not a very senior official in the government hierarchy (Prosecutor v. Jean-Paul Akayesu, Case no. ICTR-96-4-S, 2 October 1998, Sentence, para. 35).
  • The need for sentences to reflect the importance of the accused’s role in the broader context of the conflict in the former Yugoslavia: “Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure, when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low” (Prosecutor v. Duško Tadić , Case no. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, 26 January 2000, para. 56).

4. Aggravating Circumstances

The case law of international courts has recognized several aggravating circumstances related to the vulnerability and number of victims, but also to the personal conduct of the accused.

  • The vulnerability of victims is considered an aggravating factor in sentencing. However, the civilian status of the victim is not an element supporting particular vulnerability of the victim, as it already constitutes an element of the crime. Finally, the fact that victims are displaced persons or detainees constitute an aggravating factor (Prosecutor v. Darko Mrđa, Case no. IT-02-59-S, Sentencing Judgment, 31 March 2004, para. 48). See also Prosecutor v. Dario Kordić and Mario Čerkez, Case no. IT-95-14/2-A, Judgment, 17 December 2004, para. 1088; Prosecutor v. Tihomir Blaskić, Case no. IT-95-14-T, Judgment, 3 March 2000, para. 786 and Prosecutor v. Kunarac et al., Case no. IT-96-23-T and IT-96-23/1-T, Judgment, 22 February 2001, para. 864 (young age of the victims).
  • The consequences of the crimes for the victims, in particular extraordinary suffering, shall be taken into account as an aggravating factor (Prosecutor v. Darko Mrđa, Case no. IT-02-59-S, Sentencing Judgment, 31 March 2004, paras. 55 and 56).
  • The number of victims and the magnitude of the crime can constitute aggravating factors (Prosecutor v. Kunarac et al., Case no. IT-96-23-T and IT-96-23/1-T, Judgment, paras. 866-867; Prosecutor v. Milomir Stakić, Case no. IT-97-24-T, Judgment, 31 July 2003, para. 907; and Prosecutor v. Dražen Erdemović, Case no. IT-96-22-Tbis, Sentencing Judgment, 5 March 1998, para. 15).
  • Abuse of authority is an aggravating circumstance (Prosecutor v. Duško Tadić, Case no. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, 26 January 2000, paras. 55 and 56; Prosecutor v. Radislav Krstić, Case no. IT-98-33-T, Judgment, 2 August 2001, para. 709 and Prosecutor v. Tharcisse Muvunyi, Case no. ICTR-00-55A-T, Judgment, 11 February 2010, paras. 145 and 146).
  • Zeal and sadism are factors to be considered, where appropriate, as aggravating (Prosecutor v. Aloys Simba, Case no. ICTR-01-76-A, Judgment, 27 November 2007, para. 320).
  • The fact that the accused held high positions of authority at the time he committed the crimes and abused his power to commit crimes. (The Prosecutor v. Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, October 2, 1998, p. 7),
  • Premeditation can also be considered as an aggravating factor (Prosecutor v. Radislav Krstić, Case no. IT-98-33-T, Judgment, 2 August 2001, para. 711).

IV. Responsibility of impartial Humanitarian Organisations

The implementation of IHL is based on the respect by belligerents for specific obligations, in particular with regards to the protection of civilians in times of armed conflict, but also with regards to the work of impartial humanitarian organisations. IHL has created mechanisms of criminal sanctions for the violations of these obligations. It has shown great creativity in this area, establishing individual responsibility for both subordinates and superiors, and as early as 1949, establishing the principle of universal jurisdiction for all national courts to investigate and prosecute perpetrators of serious violations of IHL.

However, the content of IHL focusses on mechanisms for the preventing crimes and limiting violence, and only marginally on criminal sanctions. The temporality of IHL is not that of international criminal law (ICL). The objective and means of IHL are aimed at limiting the number of civilian deaths in the present time of an armed conflict without waiting for possible trials in the context of post-mortem justice.

To this end, the States Parties to the Geneva Conventions and their additional Protocols have entrusted the ICRC and other impartial humanitarian organisations with an essential role and specific rights to provide relief and protection to victims of armed conflict.

Although the primary responsibility for complying with IHL lies with States and armed actors involved in conflicts, humanitarian organizations are responsible for how they act towards civilian victims of conflict, how they interact with the parties to the conflict to negotiate relief actions in accordance with the rules and principles of IHL, and how they respond to serious violations of IHL and crimes they witness in the course of their relief activities among conflict victims.

Humanitarian actors working with civilian populations affected by armed conflict and violence face multiple dilemmas that reflect the three main areas of responsibility they must assume under IHL and other moral, ethical, or professional imperatives.

  • The responsibility to act in accordance with humanitarian principles and rules that protect victims of conflict.
  • The responsibility to interact with the parties to the conflict to prevent humanitarian relief from being used as material support for violations of IHL, war crimes, crimes against humanity, or genocide.
  • The responsibility to respond as witnesses to serious violations and mass crimes committed against the populations with whom they are working.

These responsibilities fall broadly into two categories based on the status of humanitarian actors providing humanitarian assistance to victims of conflict under IHL (A) and the status of potential witnesses to crimes committed against the population (B).

It may also happen that certain States seek to criminalize the actions of humanitarian organizations under national law. To address these risks, IHL contains provisions exempting humanitarian and medical personnel from criminal responsibility. These humanitarian exemptions have been affirmed by the UN Security Council, particularly in situations of conflict labelled as counterterrorism (C).

A. Humanitarian Responsibility to act in respect of IHL rules and principles

Humanitarian actors have a dual duty to act on behalf of civilian populations and to interact with armed actors in accordance with the rules and principles of IHL. This obligation requires knowledge of the fundamental rules and principles of IHL relating to relief (1)and the ability to negotiate their application with the parties to the conflict without weakening their content (2).

1. The responsibility to know the basics of IHL rules and principles

IHL has granted a right of humanitarian initiative to the ICRC and other impartial humanitarian organisations in order to negotiate and implement assistance and protection activities in accordance with thewith the rights of victims of armed conflict and humanitarian principles.

Humanitarian principles require that medical and humanitarian assistance be provided wherever it is needed, impartially and with priority given to those who have the greatest need. In this regard, IHL effectively confirms that impartial humanitarian organisations have the right (inter alia) to:

  • offer their assistance to parties to the conflict, at any time, without this being construed as interference in the domestic affairs of the State concerned; (Common art. 3 to the Geneva Conventions; GCI-III, art. 9; GCIV, arts. 10, 11 and 59; API, arts. 4(4) and 70(1); APII, arts. 3(2) and 18(1))
  • assess whether a population is suffering undue hardship due to a scarcity of supplies essential for its survival, such as food and medical supplies; (GCIV, art. 30; APII, art. 18(2))
  • undertake assistance operations for the benefit of the population when it does suffer from severe shortages of supplies essential for its survival and monitor the distribution to the civilians and the most vulnerable; (CGIV, arts. 23, 38, 59, 61 and 63(a); API, art. 70; CIHL Rules 55 and 56)
  • collect and care for the wounded and sick and ensure that their treatment is in conformity with medical ethics and does not involve any form of adverse discrimination; (Common art. 3(2) to the Geneva Conventions, GCI-III, arts. 9 and 10; GCIV, art. 38; API, arts. 15(4) and 17; APII, arts. 7-8 and 18)
  • guarantee that persons who are displaced or detained as a result of a conflict receive the protection and assistance to which they are entitled; (GCIII, art. 125; GCIV, art. 109; API, arts. 74, 75(3) to (7), 76; APII, arts. 5 and 6)
  • provide all categories of protected persons with assistance in conformity with the rights and protection guarantees that IHL grants them. (CGI, art. 10; GCIV, art. 27; API, art. 75; APII, art. 4)

The action of impartial humanitarian organisations is an important indicator of the willingness and the ability of belligerents to provide assistance to the victims of armed conflict themselves as well as to authorise and facilitate relief action of impartial humanitarian organisations. These organisations play an essential role in safeguarding assistance adjusted to the various vulnerability and rights provided for each category of protected persons under IHL..

This constitutes the framework and standards of protection for victims of armed conflicts contained in IHL. This duty of protection rests not only on the parties to the conflict, but also with the International Committee of the Red Cross (ICRC) and other impartial humanitarian organisations active in situation of armed conflict. While the ICRC is officially and specifically mandated by the Geneva conventions, the presence and professional duties of the other impartial humanitarian organisation are also explicitly provided for by IHL.

➔Assistance; International humanitarian law (IHL), Humanitarian personnel; Medical personnel; Nongovernmental organisation; Protecting powers; Protection; Relief; Right of access; Right of humanitarian initiative; Special agreement

2. The responsibility to negotiate humanitarian action with parties to the conflict

IHL sets out specific rules for assisting and protecting civilians in times of armed conflict. Impartial humanitarian organisations involved in such situations have a responsibility to negotiate their working conditions with the warring parties. These conditions must be consistent with, and not undermine, the guarantees set out in IHL. Impartial humanitarian organisations also have a responsibility to report on the extent to which they are able, or prevented, from providing effective assistance relevant to the protection and survival of the populations concerned. This responsibility includes negotiating and defending a civilian and independent humanitarian space. It goes further than the mere exercise of proper financial control over private or institutional funds allocated for humanitarian assistance.

Humanitarian responsibility also differs from activities aimed at protecting human rights and combating impunity. It cannot therefore simply be delegated by humanitarian actors to human rights organizations on the ground of an alleged complementarity of their mandates—humanitarian relief in the case of the former and public condemnation in the case of the latter.

Humanitarian responsibility is exercised continuously throughout the relief process. It includes the following obligations:

  • The duty to negotiate working conditions with the authorities, in accordance with the guarantees set out in IHL for the benefit of the population in general and the most vulnerable in particular.
  • The responsibility to identify and report any obstacles, impediments, or prohibitions to their assistance activities that will adversely affect the most vulnerable. This action must be taken at the local, national, as well as at the international level depending on the severity of the situation. It consists of alerting and holding accountable the authorities directly concerned about the reality of the humanitarian situation. This alert is necessary to prevent these authorities from trying to evade their own responsibility by claiming that they were not informed of the situation. It is crucial because it draws attention to the dangers that a particular population or group may continue to face, despite the presence of humanitarian actors and the volume of assistance being brought in. It thus helps to limit the risk of humanitarian action being exploited to “normalize” a situation of violence
  • They also have a responsibility to denounce situations in which assistance is diverted from its intended purpose and used to endanger the populations it is intended to help. These are not theoretical scenarios. There are numerous historical and contemporary examples of the actions and means of impartial humanitarian organisations being used against the populations they are trying to help. This is the case, for example, when humanitarian organisations are used to locate and attack the places where the vulnerable members of a population are hiding, or when the distribution of assistance is used to gather populations that are then be attacked, sorted, or displaced by force. A party to a conflict risk also deliberately deprive a population of essential supplies in order to attract and divert assistance. Impartial humanitarian organisations may be authorised to provide material assistance to create a semblance of normality in places where, despite such assistance, people are subjected to lethal violence and coercion.

Responsible humanitarian organisations should be able to analyse the true nature of their action in a given situation, and to test it against the IHL framework of assistance and protection of victims of armed conflict. They cannot stay silent in situations in which, despite the distribution of assistance, the security and the lives of the population continue to be threatened and destroyed. It should be recalled that speaking out about violation of IHL is not a breach of neutrality.

Many humanitarian organisations are still in the early stage of addressing these responsibilities under IHL framework. They are often addressed through general debates about the moral dilemmas of humanitarian action or through an alleged division of labour between organisations focusing on public denunciation and criminal sanction of violations of IHL of international law and those oriented toward field humanitarian action.

The “Professional Standards for Protection Work,” first published in 2010 and updated in 2020 have been jointly developed by the ICRC and a group of experts from international and non-governmental organisations, to provide professional guidance to both Humanitarian and Human rights organisations. They point at the risks of various good intended actions from humanitarian and rights activist organisations that may rather increase the vulnerability of victims or weaken their rights. These professional standards provide a minimum framework of professional ethics for responsible relief actions. They should be considered in the planning and evaluation of activities within each organisation and should be made more transparent to the public. The standards complement the codes of conduct developed by the International Federation of the Red Cross and the Red Crescent Societies and the ICRC in the 1990s, which set out the humanitarian principles accepted by humanitarian organisations.

In order to guarantee the humanitarian nature of their work, impartial humanitarian organisations must engage into practical agreement with relevant parties at field level to ensure that assistance reaches the most vulnerable and does not provide benefit to any party to the conflict. This is reflected in the use of a privileged administrative framework, such as a Humanitarian Special agreement or Memorandum of Understanding agreed to by Parties to the conflict (under Common art. 3 of the Geneva Conventions; GCI-III, art. 6 and GCIV, art. 7) that respects and operationalise IHL provisions notably regarding the neutral and protected status of impartial humanitarian and medical assistance.

➔ Humanitarian principles; Protection ; Right of access; right of humanitarian initiative; Special agreement

3. Jurisprudence on Humanitarian responsibility

The respect for the exclusively humanitarian and impartial nature of humanitarian aid has been recognized by the case law of the International Court of Justice. The defence of these principles is therefore a primary responsibility of humanitarian organizations.

The interaction between humanitarian activities and criminal activities of parties to the conflict was highlighted in two cases by the International Criminal Tribunal ad hoc for the former Yugoslavia (ICTY). The ICTY did not consider that the presence of humanitarian actors and activities in a specific context normalized the situation and removed the criminal character of the acts committed by the parties to the conflict.

There is currently no international criminal case law concerning forms of potential humanitarian complicity linked to the presence of humanitarian organizations in situations involving serious violations of IHL and mass crimes.

  • In the case of Nicaragua v. United States of America (Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 14), the ICJ affirmed the legality of providing humanitarian assistance in the context of a non-international armed conflict : “[t]here 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.” (para. 242). 

    In this case the ICJ also emphasised the need for impartial humanitarian organisations to engage equally with all State and non-State parties to the conflict in order to provide the assistance necessary for the survival of the populations under their respective control, without adverse distinction/discrimination other than those based on needs: “An essential feature of truly humanitarian aid is that it is given ‘without discrimination’ of any kind. In the view of the Court, if the provision of ‘humanitarian assistance’ is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the pur-poses hallowed (sic) 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 al1 in need in Nicaragua, not merely to the contras and their dependents” (para. 243)

  • In the Stakić case (Prosecutor v. Milomir Stakić, Case No. IT-92-24-A, Judgment, 22 March 2006, para. 286), the Appeals Chamber of the ICTY held that the involvement of an NGO in facilitating a transfer does not in and of itself render an otherwise unlawful transfer lawful.
  • In the Simić case (Prosecutor v. Simić et al., Case No. IT-95-9-A, Judgment, 28 November 2006, para. 180) the Appeals Chamber followed the same approach. It found that “the presence of representatives from UNPROFOR [the United Nations Peacekeeping Force in Bosnia and Herzegovina] and the ICRC during some of the exchanges that took place did not render the displacements at issue lawful, nor did it lead to the conclusion that the forcible displacements were of insufficient gravity to rise to the level of persecution”.

B. Humanitarian Responsibility as potential witnesses to crimes against the population

By virtue of their presence in the field, members of impartial humanitarian organisations may be direct witnesses to crimes and coercion committed against civilians in situations of armed conflict. These situations require clarification of the content of humanitarian responsibility as witnesses to crimes. Long-standing questions about silence and possible forms of humanitarian testimony in the face of crimes (1) have been raised again with the emergence of international criminal tribunals and the compatibility between judicial testimony and the role of humanitarian actors (2).

IHL requires that they report serious violations to the ICRC and protest to the parties to the conflict concerned.

1. Neutrality and humanitarian testimony

IHL stipulates that serious violations witnessed must be reported to the ICRC and to the parties to the conflict concerned. In the most serious cases, IHL provides for the possibility of referring the matter to the UN authorities and the International Humanitarian Fact-Finding Commission (PAI Articles 89 and 90).

The purpose of this duty to alert exercised by humanitarian organizations is to establish the facts and hold the military and political authorities concerned accountable in order to obtain, as quickly as possible, improved conditions for the assistance and treatment of victims of the conflict. In this context, we can also refer to humanitarian testimony to clarify its different nature and purpose compared to the fight against impunity and judicial testimony.

The effectiveness of this accountability often requires a confidential discussion phase, but it also involves relief organizations speaking out publicly to report on the situation and the results of any discussions at the local or international level.

IHL does not impose an obligation of confidentiality on the ICRC or on other impartial humanitarian organisations with regard to grave violations of IHL. However, the principle of neutrality prohibits impartial humanitarian organizations from participating in public controversies against either party to the conflict. This participation risks inadvertently contributing to military propaganda activities in support of one party to the conflict. Indeed, in times of conflict, communication is also used and considered a powerful weapon and method of warfare. It is therefore important that public communication by humanitarian organizations concerning violations of IHL remains exclusively humanitarian and impartial, and limit themselves to factual information of which the organization has been directly affected or witnessed.

Nevertheless, the public denunciation of crimes by impartial humanitarian organisations raises several operational dilemmas.

The main dilemma is based on the fact that any public denunciation of crimes committed by parties to the conflict risks compromising security and therefore the presence and activities of the organisations on the ground.

For a long time, impartial humanitarian organisations have adopted an absolutist interpretation of the principle of neutrality and silence to solve this dilemma. Neutrality and silence would prohibit humanitarian organisations from taking a position on belligerents and their methods of warfare and would therefore guarantee the security of their presence and activities on the ground. However, in the case of genocide or acts of extermination, for example, the argument for maintaining humanitarian operations at all costs is no longer as relevant. Silence can no longer be seen as a dogma by impartial humanitarian organisations Indeed, the presence of silent humanitarian organizations could be exploited to give an appearance of normality that conceals crimes committed against part or all of a population, or to attract the population and divert aid. Such situations test the responsibility and practices of humanitarian organizations.

The question of silence and neutrality must therefore be considered from an operational perspective and assessed in terms of its real impact on the protection and assistance provided to the populations concerned. It should be noted that during the armed conflict in the former Yugoslavia, for example, the ICRC stated that denouncing serious violations of IHL was not a violation of the principle of neutrality. Since then, the ICRC has made it clear that neutrality cannot be confused with confidentiality and silence. This principle has a value in terms of operational effectiveness and should not be seen as an abstract and absolute principle.

➔Humanitarian principles; The Red Cross and Red Crescent Movement

Some humanitarian organizations have also thought they could resolve these contradictions by confidentially passing on the information they have about IHL violations to human rights organizations, which could then make it public without revealing their sources and without risking the safety of relief operations and their staff on the ground. There are also various UN mechanisms that allow such information to be made public while maintaining the confidentiality of the source.

However, these practices cannot guarantee 100% anonymity and therefore the safety of the source. Furthermore, they fuel mistrust among the parties to the conflict towards what they perceive as clandestine activities by humanitarian organizations. In addition, such solutions risk the responsibility of each organisation to protect of victims, as they have different objectives and operate under different time constraints.

As a general rule, humanitarian responsibility in the face of mass crimes is based on a function of alerting and holding actors accountable with the aim of immediately preventing crimes and strengthening humanitarian aid. It is based on information that the organization itself has directly experienced or witnessed in the course of its relief activities. This humanitarian responsibility may, depending on the severity of the situation, lead to the voluntary suspension of relief operations and public statements denouncing violence and obstacles to humanitarian assistance. It therefore differs from the more general collection of testimonies to document international crimes for the purpose of combating impunity and contributing to future proceedings before international courts.

2. Humanitarian actors exempt from the duty to testify in court

The establishment of the ad hoc ICTY and the International Criminal Tribunal for Rwanda (ICTR) as well as the ICC, has introduced a new judicial dimension to international relations. This has led impartial humanitarian organisations to reconsider their position on violations of IHL. Some NGOs actively cooperate with international criminal justice and see themselves as actors in the fight against impunity, providing information for the indictment and trial of alleged perpetrators of war crimes and crimes against humanity. They consider their participation in legal proceedings to be an integral part of their moral responsibility as humanitarian actors.

Other organizations refrain from any such cooperation arguing that the activities and judicial timetable are incompatible with the nature and constraints of neutral and impartial humanitarian action, which requires negotiating relief efforts in the midst of armed violence and with the alleged perpetrators of these crimes. They limit their humanitarian responsibility to the alert and accountability activities provided for in IHL.

They recall that the humanitarian obligation to inform the authorities of IHL violations should not be confused with an obligation to testify before national or international criminal tribunals. Such obligation could jeopardise the presence and safety of humanitarian workers in conflict zones and ultimately the mere existence of humanitarian action

In the meantime, this position does not prevent impartial humanitarian organisations to be able to address the specificity of such crimes and to limit their negative consequences through appropriate assistance. They can also document facts and events related to their activities before the evidence disappears and provide victims with medical reports and other documents enabling them to assert their rights at a later stage, if possible.

The dilemma concerning the existence of a possible humanitarian responsibility with regard to court testimony has been resolved by the international courts themselves.

This has been recognised by the ad hoc International Criminal Tribunals, which in several judgments have acknowledged the incompatibility between the mandates of humanitarian workers and war correspondents and the role of judicial witnesses. This immunity has since been recognised by the ICC for the ICRC and for professions covered by professional secrecy such as doctors and journalists. The privilege against the disclosure of ICRC information has been codified under Rule 73(4) of ICC’s Rules of Procedure and Evidence.

The detailed jurisprudence on the principles and criteria of this immunity from testimony for humanitarian personnel can be found under ➔ Immunity.

C. Humanitarian criminal liability and humanitarian exemption

Undue criminalisation of humanitarian actors has triggered the need to restore humanitarian independence provided by IHL and develop humanitarian exemption clauses at international and national level.

In recent years, there have been two main categories of criminal charges brought by various States against impartial humanitarian organisations and individuals. Namely, when impartial humanitarian organisations provide assistance to migrants and asylum seekers but also when they carry out humanitarian activities in situation of armed conflict classified as counterterrorism.

Regarding assistance to asylum seekers, new criminalisation tendencies have emerged notably but not only in Europe to punish the facilitation of the entry and stay of irregular migrants in the member States of the European Union (EU). This is often due to the unclear distinction between what is and what is not smuggling, humanitarian assistance and financial gain. The EU and national policies are increasingly affecting impartial humanitarian organisations and other actors, including individuals, who provide humanitarian assistance and access to rights to undocumented migrants and asylum seekers. Even if most final Judgements have absolved humanitarian workers, the length of Court case proceedings in different countries play a chilling effect on those providing humanitarian assistance.

➔ Boat people; Migrant-Migration

National counter-terrorism measures and legislations have had a significant impact on humanitarian assistance in war affected areas. Their standard provisions criminalise the transfer of all kinds of resources to terrorist groups or individuals, even in the absence of any knowledge or intention to support criminal acts. Extended definitions of terrorist offences are contrary to IHL when they render impossible humanitarian action in situations of armed conflict for entire populations living in territory controlled by non-State armed groups labelled as terrorist.

The fact that non-State parties to a conflict are designated or regarded as terrorists should not deprive the population under their control of their fundamental right to assistance and consequent protection under IHL. Similarly, the provision of humanitarian assistance in a manner consistent with IHL should never be considered as complicity or material support to terrorism nor as direct or indirect support to a party to the conflict . Indeed, the IHL rules for humanitarian assistance is designed to avoid providing military or economic benefits to any party to an armed conflict.

Impartial humanitarian action is authorised and protected by IHL and should not lead to prosecution when it is compliant with IHL and respects the humanitarian principles of humanity, neutrality, independence, and impartiality. The criminalization of humanitarian assistance affects the protected status and safety of the humanitarian and medical facilities and personnel engaged in exclusively medical and humanitarian activities. It also imposes a criminal liability on medical and humanitarian personnel which is a clear violation of IHL’s prohibition on punishing persons for carrying out medical activities in accordance with medical ethics, regardless of the circumstances. (See API, art.16(1); APII, art. 10(1) and CIHL Rule 26).

The first step of restoring the legality of humanitarian action against its criminalization in sensitive contexts of counter-terrorism armed conflict has been obtained by special binding resolutions adopted by the Security Council of the United Nations Organisation.. UNSC resolutions have provided exemptions for humanitarian activities and instruct States to ensure that their counterterrorism measures do not adversely affect humanitarian action and to take into account the potential adverse effect of counterterrorism measures on impartial humanitarian action. (See UNSC Resolution 2462 (March 2019), para. 24; Resolution 2482 (July 2019), para. 16, Resolution 2593 (August 2021), para. 3, Resolution 2582 (June 2021), para. 4, Resolution 2590 (August 2021), preambular paras. 9-10; Resolution 2615 (December 2021), para. 1 and Resolution 2664 (December 2022), para. 1).

In addition, the recommendations of the 2023 UN General Assembly (UNGA) resolution 77/288 on the Counterterrorism strategy “[u]rge[d] States to ensure, in accordance with their obligations under international law and national regulations, and whenever international humanitarian law is applicable, that counter-terrorism legislation and measures do not impede humanitarian and medical activities or engagement with all relevant actors as foreseen by international humanitarian law, noting the applicable rules of international humanitarian law relating to the non-punishment of any person for carrying out medical activities compatible with medical ethics;” (see para. 113 of UNGA resolution 77/288).

The second step would require domestication of UN resolution humanitarian exemption in the criminal law of the various countries regarding humanitarian and medical activities carried out by impartial organisations in accordance with IHL.

Such humanitarian exemption is not a blanket criminal exemption as it is deliberately narrow in terms of material and personal scope to ensure that any organisation with criminal intentions would de jure and de facto be unable to rely on this exemption.➔ Sanctions Committees, Sanctions(Diplomatic, Economic, or Military);Terrorism

 

See also➔Amnesties; Duty of commanders; Humanitarian principles; Immunity; Individual recourse; International Criminal Court; International Criminal Tribunals; International humanitarian law, Humanitarian personnel; Medical personnel ; Nongovernmental organisation ; Penal sanctions in humanitarian law; Protection ; Protecting powers; Red Cross-Red Crescent; Relief; Respect for international humanitarian law; Right of access; Right of humanitarian initiative; Special agreement ; Universal jurisdiction; Terrorism ; War crimes/Crimes against humanity

📖 For Additional Information:

  • Aubert, Maurice, “The question of superior orders and the responsibility of Commanding Officers in the Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts (Protocol I) of 8 June 1977.” International Review of the Red Cross, vol. 263 (April 1988): 105-120.
  • Binet, Laurence, Medecins Sans Frontières Speaking Out case Studies, Available at https://www.msf.org/speakingout
  • Blishenko, Igor P., “Responsibility in Breaches of Humanitarian Law.” In International Dimensions of Humanitarian Law, Geneva, Henry Dunant Institute, 1988, p. 283-296.
  • Bouchet-Saulnier, “How counterterrorism throws back wartime medical assistance and care to pre-Solferino times”, International Review of the Red Cross, vol. 103, no. 916-917, February 2022: 479-516.  Available at: https://international-review.icrc.org/articles/how-counterterrorism-throws-back-wartime-medical-assistance-to-pre-solferino-times-916
  • “Where Counterterrorism Measures Impede Humanitarian Action, Domestic Law Is Key”, IPI Global Observatory, 17 June 2021. Available at . https://theglobalobservatory.org/2021/06/where-counterterrorism-measures-impede-humanitarian-action-domestic-law-is-key/
  • Bouchet-Saulnier, Francoise and Dubuet, Fabien ; « Legal or humanitarian testimony? History of MSF’s inter-actions with investigations and judicial proceedings », Mach 2007. Crash. Fondation Médecins sans Frontières ; Available at https://msf-crash.org/en/rights-and-justice/legal-or-humanitarian-testimony-history-mfss-interactions-investigations-and
  • Crawford, James, Brownlie’s Principles of Public International Law, 9th edition, Oxford, Oxford University Press, 2019.
  • Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 4th edition, Cambridge, Cambridge University Press, 2022.
  • Doswald-Beck, Louise, Customary International Humanitarian Law, Cambridge University Press, 2005, Vol. II, p. 3733-3799.
  • Graditzky, Thomas, “Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflicts.” International Review of the Red Cross, vol. 322 (March 1998): 29-56.
  • Henckaerts, Jean-Marie and Doswald-Beck, Louise, eds., Customary International Law. Vol. 1, The Rules. Cambridge, Cambridge University Press, June 2005, part 6.
  • Hendin, Stuart E., “Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution”, Murdoch University Electronic Journal of Law, vol. 4, no. 10(1), 2003Available at http://classic.austlii.edu.au/au/journals/MurdochUeJlLaw/2003/4.html
  • Huvé, Sophie and Brubaker, Rebecca, “Humanitarian Exemptions in UN Sanctions Regime”, UN Sanctions and Humanitarian Action Policy Memo3/4 March 2022, 12p, United Nations University, Centre for Policy and Research, Available at file:///D:/Users/F-SAULNIER/Downloads/UNSHA-PolicyMemo3.pdf
  • ICRC, “Engagement with Non-State armed groups: Position paper March 2021: Why, how, for what purpose, and other salient issues”, International Review of the Red Cross, vol. 102, no. 915, January 2022: 1087-1098.
  • Professional Standards for Protection Work Carried Out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence, 3rd ed., 2018, Available at https://www.icrc.org/en/publication/0999-professional-standards-protection-work-carried-out-humanitarian-and-human-rights
  • International Federation of the Red Cross and Red Crescent Societies and the ICRC, The Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations (NGOs) in Disaster Relief, 1 January 1994, Available at https://www.ifrc.org/sites/default/files/2021-07/code-of-conduct-movement-ngos-english.pdf
  • La Rosa, Anne-Marie, “Humanitarian organizations and international criminal tribunals, or trying to square the circle”, International Review of the Red Cross, vol. 88, no. 861 (March 2006): 169-186.
  • Meloni, Chantal, Command Responsibility in International Criminal Law, T.M.C. Asser Press, The Hague, 10 June 2010, 286 pages.
  • Mettraux, Guénaël, The Law of Command Responsibility. Oxford, Oxford University Press, 2009, 307 pages.
  • Mongelard, Eric, “Corporate civil liability for violations of international humanitarian law”, International Review of the Red Cross, vol. 88, no. 863, (September 2006): 665-691.
  • Moore, Jonathan, ed., Hard Choices: Moral Dilemmas in Humanitarian Intervention, Rowman & Littlefield, Lanham, Oxford, 1998, 322 pages.
  • Pantuliano, Sara, Mackintosh, Kate and Elhawary, Samir with Metcalfe, Victoria, Counter-terrorism and humanitarian action: Tensions, impact and ways forward, HPG Policy Brief 43, October 2011, Available at https://cdn-odi-production.s3.amazonaws.com/media/documents/7347.pdf
  • Paust, Jordans, “Superior Orders and Command Responsibility.” In International Criminal Law, edited by M. Cherif Bassiouni, Ardsley, NY: Transnational, 1999, p. 223-238.
  • Renault, Céline, “The impact of military disciplinary sanctions on compliance with international humanitarian law”, International Review of the Red Cross, vol. 90, no. 870 (June 2008): 319-326.
  • Rona, Gabor, “The ICRC’s privilege not to testify: Confidentiality in Action, An explanatory memorandum”, International Review of the Red Cross, vol. 14, no. 845, (March 2002): 207-219. Available at https://international-review.icrc.org/sites/default/files/S1560775500105188a.pdf
  • Schaff, Michael P., and Rodley, Nigel S., “International Law Principles on Accountability.” In Post-Conflict Justice, edited by Cherif Bassiouni, Brill, Nijhoff, 2002, p. 89-96
  • Sivakumaran, Sandesh, “Command Responsibility in Irregular Groups”, in Journal of International Criminal Justice, 2012, vol. 10, no. 5, p. 1137.
  • United Nations University, Centre for Policy and Research, Humanitarian Exemptions in UN Sanctions Regime, March 2022.
  • United Nations Office for the Coordination of Humanitarian affairs and Norwegian Refugee Council, Study of the impact of donor counterterrorism measures on principled humanitarian action, July 2013. Available at https://www.nrc.no/globalassets/pdf/reports/principles-under-pressure/nrc-principles_under_pressure-report-2018-screen.pdf
  • Van Sliedregt, Elies, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, T.M.C. Asser Press, The Hague, 15 November 2003, p. 438.
  • Williamson, Jamie Allan, “Some considerations on command responsibility and criminal liability”, International Review of the Red Cross, vol. 90, no. 870 (June 2008): 303-317.