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«Supervisor: Dr. Marco Pertile Advisor: Prof. Roberto Belloni October 2013 PhD Programme in International Studies 2 Abstract The provision of relief ...»

-- [ Page 1 ] --

Alice Gadler

Principles Matter: Humanitarian Assistance to

Civilians under IHL

Supervisor: Dr. Marco Pertile

Advisor: Prof. Roberto Belloni

October 2013

PhD Programme in International Studies

2

Abstract

The provision of relief to civilians in armed conflict is a sensitive activity, subject to specific regulation in

IHL treaties. Challenges emerged on the ground have questioned the comprehensive nature of this legal

framework and generated debate on the concept of humanitarian assistance itself, the role of different kinds of actors (local/external, governmental/nongovernmental, armed/unarmed) in providing it, and the value and meaning of the principles traditionally associated to it—humanity, impartiality, neutrality, independence.

This research, examining the evolution of State practice and opinio juris, provides a comprehensive analysis of the legal regime applicable to the provision of relief to civilians in armed conflict and the different categories of actors involved in it, identifying answers offered by international law (primarily IHL) to issues emerged in practice.

It is argued that humanitarian assistance is a well-defined and limited concept under IHL. Rules on this issue have been subject to progressive development, e.g. those on the protection of humanitarian workers in non- international armed conflict, but State practice has revealed that sovereignty remains important, and the principles of humanitarian assistance continue to embody the balance acceptable to States between military necessity and humanitarian considerations. No right to access or to provide humanitarian assistance without consent from the Parties concerned has developed, including no right to provide relief in non-international armed conflict in territory controlled by non-State armed groups without State consent. Participation in the provision of humanitarian assistance by local and external actors is not prohibited, but the level of protection they enjoy depends on their position under IHL. Different regimes are applicable to distinct armed actors (belligerents/peacekeepers/external armed forces/private security companies) but in all cases respect for the principle of distinction is central. In general, special protection for relief actions and actors remains connected to respect for the principles of humanitarian assistance. This has been confirmed by belligerents’ reactions to the increased engagement of humanitarian organisations in protection, as the second essential component of humanitarian action: belligerents have claimed their entitlement to require respect by humanitarian personnel also for the most contested principle—neutrality, meaning non-interference in hostilities and even abstention from involvement in politics.

3 Acknowledgements and disclaimer Writing this dissertation was an intense and challenging experience, to which many people have contributed in different ways.

I would have never succeeded without the feedback and support of my supervisor, Dr. Marco Pertile, who skillfully challenged and stimulated me to fully develop my arguments. I am also thankful to the academic and administrative staff at the School of International Studies, as well as all the colleagues and friends who discussed the topic with me during my stays at the Centre de Droit International of the Université Libre de Bruxelles and at the Lauterpacht Centre for International Law of the University of Cambridge. Finally, my PhD examiners, Prof. Maurizio Arcari and Dr. Yutaka Arai, provided my with insightful comments and engaged with me in a truly rewarding discussion.

My work experience with the Brussels Liaison Office of UN OCHA, with CESVI in Bunia, and with the Division for Multilateral Organisations, Policy and Humanitarian Action (MOPHA) of the ICRC offered me the unique opportunity to participate in the daily reality of the field I was researching and learn from seasoned and competent colleagues. However, the views expressed in this dissertation are my own and are in no way intended to represent the views of any of the organisations with which I am, or have been, associated.

My PhD colleagues, my colleagues in Brussels, Bunia and Geneva, and my friends have been there for me throughout these years, raising my spirits up when I needed it and helping me keep the determination to finish this dissertation. Finally, my family has unfailingly supported me in all my decisions and endeavours, and for this I cannot but be extremely grateful.

–  –  –

List of Abbreviations

Introduction: What Boundaries for Humanitarian Assistance?

Plan of the Research

1. Humanitarian Assistance to Civilians in Armed Conflict: Roots and Debates Related to It............. 19

1.1. Roots and Development of the Idea, of the Principles Related to It and of Its International Regulation

1.2. Debates around Humanitarian Assistance

1.2.1. Defining the Concept

1.2.2. Humanitarianism and the Use of Force

1.2.3. The Politicisation of Humanitarian Assistance: New Humanitarianism and the Focus on Protection

1.3. Some Preliminary Theoretical and Methodological Issues

1.3.1. International Humanitarian Law and its Interaction with International Human Rights Law........ 43 1.3.2. Principles in International Law





1.3.3. Issues Related to the Creation of International Law

1.3.3.1. The Legal Force of Inter-Governmental Organisations’ Resolutions

1.3.3.2. The Value of Military Manuals

1.3.3.3. The Role of Non-State Actors

1.4. Conclusion

2. Humanitarian Assistance in IHL Treaties

2.1. Humanitarian Assistance to Civilians in the Geneva Conventions and Additional Protocols............. 74 2.1.1. Applicability of IHL and Humanitarian Assistance

2.1.1.1. Applicability Ratione Materiae

2.1.1.2. Applicability Ratione Personae

2.1.2. The Concept and Its Content: Relief, Aid, Assistance

2.1.3. The Quality of Being ‘Humanitarian’

2.1.4. Humanitarian Assistance: The Roles of Local and External Actors

2.1.4.1. Local Authorities

2.1.4.2. Local Relief Societies and External Actors

2.1.4.2.1. External Relief Actions

2.1.4.2.2. Protection of Relief Personnel

2.1.4.3. What Role for Armed Forces?

2.1.5. What Role for the Principles in the Regulation of Humanitarian Assistance?

2.1.5.1. The Principles of Humanitarian Assistance in IHL Treaties

2.1.5.1.1. The Principles and the Action

2.1.5.1.2. The Principles and the Actor

2.1.5.2. Humanitarian Protection: Questioning the Principles?

5 2.1.5.2.1. The ICRC and Protection in IHL Treaties

2.1.5.2.2. Other Actors and Protection Activities under IHL

2.1.5.3. Principles of Humanitarian Action

2.2. Conclusion

3. Humanitarian Assistance in Practice

3.1. Humanitarian Assistance in the Cold War: The Principles and the Centrality of Consent................ 132 3.1.1. Humanitarian Assistance as Part of the Cold War Strategies and the Emergence of SansFrontiérisme

3.1.2. The ICJ and the Nicaragua Case

3.2. Humanitarian Assistance since the 1990s: Under the Spotlight

3.2.1. The Practice within the UN Framework

3.2.1.1. The Instrument of Thematic Resolutions

3.2.1.1.1. The Primary Responsibility of the Parties to the Conflict and the Role of Local Actors

3.2.1.1.2. Consent, Humanitarian Access and the Facilitation of Humanitarian Assistance....... 147 3.2.1.1.3. External Relief and the Principles of Humanitarian Assistance

3.2.1.1.4. Safety and Security of UN and Humanitarian Personnel

3.2.1.1.5. The Military and Humanitarian Assistance

3.2.1.1.6. Conclusion

3.2.1.2. Conflict-Specific Resolutions

3.2.1.2.1. Humanitarian Access and Facilitation of Humanitarian Assistance

3.2.1.2.2. Safety, Security and Freedom of Movement of Humanitarian Workers

3.2.1.2.3. Obstacles to Humanitarian Assistance and Workers as Violations of IHL.................. 191 3.2.1.2.4. Sanctions and Humanitarian Exemptions

3.2.1.3. Commissions of Inquiry and Fact-Finding Missions: Starvation, Blockades and Humanitarian Access

3.2.1.4. Conclusion

3.2.2. The Practice of States and Other Parties to Armed Conflicts

3.2.2.1. The Concept of Humanitarian Assistance

3.2.2.2. The Primary Responsibility of the Parties to the Conflict and the Role of Local Actors.... 219 3.2.2.3. Consent, Humanitarian Access and the Facilitation of Humanitarian Assistance............... 221 3.2.2.4. External Relief and the Principles of Humanitarian Assistance

3.2.2.5. Safety and Security of Humanitarian Personnel

3.2.2.6. The Military and Humanitarian Assistance

3.2.2.7. Conclusion

3.3. Conclusion: Restatement of the IHL Framework and Broader Protection in Non-International Armed Conflict

4. Humanitarian Assistance and Military Actors

6

4.1. The Armed Forces of Belligerents and Relief Workers

4.1.1. Civil-Military Relations in the 1990s

4.1.1.1. The Use of Armed Guards and Escorts and the Need for Self-Regulation

4.1.2. The 21st Century: Comprehensive Approaches and Counterinsurgency Strategies

4.1.2.1. The Experiences in Afghanistan and Iraq: The Principle of Distinction and the Concept of Direct Participation in Hostilities

4.1.2.2. Military Doctrine: the U.S.

4.1.2.3. Military Doctrine: NATO, UK, Canada, EU

4.1.2.4. Civil-Military Guidelines: Consent, the Principle of Distinction, and the Principles of Humanitarian Assistance

4.1.3. Conclusion

4.2. Peacekeepers and Humanitarian Assistance

4.2.1. The Role of UN Peacekeepers and Authorised Forces in Humanitarian Assistance in the 1990s

4.2.1.1. Creation of a Safe Environment, Facilitation and Support

4.2.1.2. Humanitarian Assistance in the UNSG’s Efforts at Regulating and Reforming Peacekeeping

4.2.2. UN Peacekeeping in the 21st Century: Protection of Civilians (POC) and Integrated Missions 302 4.2.2.1. The Reform of UN Peacekeeping Missions: Towards Integration

4.2.2.2. UN Peacekeeping Missions, the Protection of Civilians (POC), and Humanitarian Assistance

4.2.2.3. Integration and POC: Challenges and Responses

4.2.3. Conclusion

4.3. The Involvement of the Private Sector: Private Military and Security Companies (PMSCs) and Humanitarian assistance

4.4. Conclusion

5. Stretching the Boundaries of Humanitarian Assistance? Humanitarian Assistance and Protection

5.1. Limits to Humanitarian Action and Advocacy during the Cold War

5.2. The Emergence of New Humanitarianism in the 1990s

5.2.1. Humanitarian Actors, Advocacy and Denunciations

5.2.2. Humanitarian Actors and Judicial Proceedings

5.2.3. Transmission of Information to the Security Council

5.2.4. Parties to the Conflict and Reactions to the Practice of Humanitarian Organisations................ 354 5.2.5. Attempts at Self-Regulation

5.2.6. Conclusion: What Limits for Humanitarian Assistance?

5.3. The 21st Century and the Protection Discourse: The Triumph of New Humanitarianism?............... 360 5.3.1. The Traditional Humanitarian Protection Actor in Armed Conflict: The ICRC

7 5.3.2. The Increase in Protection Actors

5.3.2.1. The UN and the Protection of Civilians

5.3.2.2. Humanitarian Actors as Protection Actors

5.3.3. Humanitarian Assistance and Humanitarian Protection: Compatible to What Extent?.............. 381 5.3.3.1. Humanitarian Assistance and Advocacy as Protection: Flotillas to Gaza

5.3.3.2. Protection and Relations with the ICC

5.3.3.3. UNSC Sanctions and Humanitarian Agencies as Sources of Information

5.3.3.4. Parties to the Conflict and Reactions to the Practice of Humanitarian Organisations......... 395

5.4. Conclusion: What Room for a Principled Approach?

6. The Current Legal Framework Regulating Humanitarian Action in Conflict: Rules and Limits for the Actors Involved

6.1. The Role of Parties to the Conflict and Local Actors

6.1.1. The Primary Responsibility of Parties to the Conflict

6.1.1.1. Satisfying the Basic Needs of Civilians

6.1.1.2. Parties to the Conflict and Relief Actions and Actors

6.1.1.2.1. Parties to the Conflict and Local Relief Actors

6.1.1.2.2. Parties to the Conflict and External Relief Actions

6.1.1.2.3. The Limit of Starvation

6.1.1.2.4. Consent to Relief Action

6.1.1.2.5. Relief Personnel

6.1.1.2.6. Humanitarian Assistance and Workers under ICL

6.1.2. The Armed Forces of Belligerents

6.1.2.1. Armed Escorts

6.1.3. Local Population and Relief Organisations

6.2. The Role of External Actors

6.2.1. Relief Actions

6.2.2. Impartial Humanitarian Organisations and Other Organisations

6.2.2.1. Impartial Humanitarian Organisations

6.2.2.1.1. The Right of Humanitarian Initiative

6.2.2.1.2. What is an Impartial Humanitarian Organisation

6.2.2.1.3. Relief Personnel and the Limits of Their Mission

6.2.2.1.4. Other Sources of Protection

6.2.3. Third States

6.2.4. External Armed Forces

6.2.4.1. International Armed Forces Not Involved in the Conflict

6.2.4.2. UN Peacekeepers

6.2.4.3. Private Military and Security Companies (PMSCs)

6.3. Conclusion

8

7. Conclusion: Principles Matter

References

Treaties and Other Agreements (in chronological order)

Other Agreements

Case-Law

International

ICJ

Human Rights Committee (HRC)

African Human Rights System

European Human Rights System

Inter-American Human Rights System

ICTY

ICTR

SCSL

ICC

Other

National

National Legislation

EU Documents

Council

Commission

Other Selected Documents

Context-Specific Civil-Military Guidelines

–  –  –



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