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ICRC Q&A and lexicon on humanitarian access1

Published online by Cambridge University Press:  01 July 2015

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Extract

A considerable number of countries have been the theatre of armed conflicts – whether international or non-international – with all the devastation and suffering that this entails, chiefly among the civilian population. Indeed, civilians continue to be the primary victims of violations of international humanitarian law (IHL) committed by both State parties and non-State armed groups. Recurring violations in hostilities include deliberate and indiscriminate attacks against civilians, the destruction of infrastructure and goods indispensable to their survival, and the forcible displacement of the civilian population. All too frequently, civilians lack basic supplies and services, such as food, water and health care.

Type
Reports and Documents
Information
International Review of the Red Cross , Volume 96 , Issue 893: Scope of the law in armed conflict , March 2014 , pp. 359 - 375
Copyright
Copyright © icrc 2015 

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Footnotes

1

Editor's note: For the purposes of the Review, a few editorial changes have been made to the original text, which is available online at: www.icrc.org/eng/resources/documents/article/other/humanitarian-access-icrc-q-and-a-lexicon.htm (all internet references were accessed in June 2014). On this topic in the Review, see also Felix Schwendimann, “The legal framework of humanitarian access in armed conflict”, Vol. 93, No. 884, December 2011, pp. 993–1008; Emanuela-Chiara Gillard's “The Law Regulating Cross-Border Relief Operations”, Vol. 95, No. 890, Summer 2013, pp. 351–382; Françoise Bouchet-Saulnier, “Consent to Humanitarian Access: An Obligation Triggered by Territorial Control, Not States' rights” in this issue of the journal.

References

2 For more details on the notion of “humanitarian activities”, see the lexicon below.

3 The ICRC's definition of “protection” is as follows: “In order to preserve the lives, security, dignity, and physical and mental well-being of victims of armed conflict …, protection aims to ensure that authorities and other actors fulfil their obligations and uphold the rights of individuals. It also tries to prevent or put an end to actual or probable violations of international humanitarian law or other bodies of law or fundamental rules protecting people in these situations. It focuses first on the causes or circumstances of violations, addressing those responsible and those who can influence them, and second on the consequences of violations.” The ICRC's “protection” activities are implemented following four main guiding principles: neutral and independent approach; dialogue and confidentiality; holistic and multidisciplinary character of ICRC action; and search for results and impact. See “ICRC Protection Policy”, International Review of the Red Cross, Vol. 90, No. 871, September 2008Google Scholar, available at: www.icrc.org/eng/resources/documents/article/review/review-871-p751.htm.

4 More details on these IHL rules governing humanitarian access can be found at questions 5 and 6 and in the lexicon below.

5 See Council of Delegates, Resolution on Humanitarian Assistance in Situations of Armed Conflict, 1991; Council of Delegates, Resolution on the Principles of Humanitarian Assistance, 1993; International Conference of the Red Cross and Red Crescent, Resolution on Protection of the Civilian Population in Periods of Armed Conflict, 1995; International Conference of the Red Cross and Red Crescent, Plan of Action for the Years 2000–2003, 1999; International Conference of the Red Cross and Red Crescent, Resolution 2, “4-Year Plan of Action”, 31C/11/R2, 28 November–1 December 2011; ICRC, “Protection of Civilians: ICRC Statement to the UN Security Council”, 22 August 2013, available at: www.icrc.org/eng/resources/documents/statement/2013/08-19-civilans-un-security-council.htm.

6 See also the lexicon and list of relevant IHL provisions below.

7 Art. 1 common to the four Geneva Conventions.

8 In international armed conflict other than occupation, the most relevant IHL provisions are: Arts 9/9/9/10 of the four GCs respectively; GC IV, Arts 17 and 23; AP I, Arts 68–71 and 81. In situations of occupation, the most relevant provisions are GC IV, Arts 59 and 61, and AP I, Arts 69 and 71. Lastly, in NIAC the relevant norms are common Art. 3(2) and AP II, Art. 18. See also Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study)CrossRefGoogle Scholar, Rules 55 and 56 applicable in both IAC and NIAC.

9 In situations of non-international armed conflict, only the consent of the State party to the conflict is required by IHL. More details on this notion of consent are provided in the lexicon.

10 In IAC, the most relevant IHL provisions are AP I, Arts 12, 15, 21 and 70–71. In NIAC, the most relevant IHL provisions are AP II, Arts (1) and 11(1). See also ICRC Customary Law Study, Rules 25 and 28–32.

11 In IAC, the most relevant IHL provision is API, Art. 54(1). In NIAC, the most relevant IHL provision is AP II, Art.14. See also ICRC Customary Law Study, above note 8, Rule 53.

12 When impartial humanitarian organizations are directly solicited by the parties to the armed conflict, their consent is of course presumed.

13 The IHL rules governing consent vary in their scope and wording. For instance, in occupation, GC IV, Art. 59 states that “if the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf the said population, and shall facilitate them by all the means at its disposal”. In other words, the Occupying Power is bound to accept the offer of services when it is unable to fulfil its primary obligation to meet the needs of the local population.

14 GC IV, Art. 55; AP I, Art. 69.

15 As a matter of good practice, this definition is followed not only by the components of the International Red Cross and Red Crescent Movement, but also by actors outside the Movement.

16 See above note 3.

17 As used in the Geneva Conventions, the term “relief” is mostly aimed towards addressing emergency situations. It needs to be read jointly with the broader term “assistance”, used in Article 81(1) of AP I, which seeks to cover additionally the longer-term as well as the recurrent and even chronic needs. Neither relief nor assistance have been defined in the aforementioned treaties. The absence of a generic definition, or of a list of specific activities which would be covered by the term “assistance”, is in line with the fact that what may be needed in terms of humanitarian assistance in one context will not necessarily be needed in another context and may evolve over time. “Assistance activities” refer to all activities, services and delivery of goods, primarily in the fields of health, water, habitat and economic security and which seek to ensure that persons caught up in an armed conflict can survive and live in dignity.

18 For IAC, see Arts 9/9/9/10 of the four GCs respectively, and AP I, Art. 70(1); for occupation, see GC IV, Art. 59; for NIAC, see AP II, Art. 18.

19 It goes without saying that when impartial humanitarian organizations are directly solicited by the parties to the armed conflict, their consent is presumed.

20 Arts 9/9/9/10 of the four GCs respectively; AP I, Art. 70(1). For occupation, GC IV, Art. 59.

21 IHL reflects that the notion of consent in the context of relief operations is intrinsically linked to the notion of State sovereignty.

22 Commentary to AP II, Art. 18, para. 4888.

23 Commentary to AP I, Art. 71, para. 2892; AP II, Art. 18, paras 4869 and 4888.

24 See inter alia International Conference of the Red Cross and Red Crescent, Resolution 2, “4-Year Plan of Action”, 31C/11/R2, 28 November–1 December 2011, Objective 1, “Enhanced Access by Civilian Populations to Humanitarian Assistance in Armed Conflicts”, available at: https:// www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-2-2011.htm.

25 AP I, Art. 70(4). See also Commentary to AP II, Art. 18, para. 4888. See the notion of “rapid” explained below.

26 AP I, Art. 70(5).

27 AP I, Arts 81(1), (2) and (3).

28 GC IV, Art. 23; AP I, Art. 70(2); ICRC Customary Law Study, above note 8, Rule 55.

29 AP I, Art. 70(4); Commentary to AP II, Art. 18, para. 4884.

30 AP I, Art. 70(3)(c); GC IV, Art. 23; Commentary to AP II, Art. 18, para. 4888.

31 See the notion of the “right of control” explained below.

32 ICRC Customary Law Study, above note 8, Rule 56. See the notion of “unimpeded” passage of relief explained below.

33 See the definition of “respect and protect” in section 6, below.

34 AP I, Art. 71(3); ICRC Customary Law Study, above note 8, Rule 56; Commentary to AP I, Art. 71, para. 2896.

35 See GC IV, Arts 23, 59(3) and (4); AP I, Arts 70(2) and (3).

36 GC IV, Art. 23.

37 See ICRC Customary Law Study, above note 8, Rule 55 and pp. 194–196 and 198–199; Swiss Federal Department of Foreign Affairs, Humanitarian Access in Situations of Armed Conflict: Handbook on the Normative Framework, Version 1, 2011, pp. 18, 20–22, 30–31; African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa 2009 (Kampala Convention), Arts 5(7) and 7(5)(g).

38 ICRC Customary Law Study, above note 8, Rule 56. See also Amended Protocol II to the Convention on Certain Conventional Weapons, Art.12.

39 AP I, Art. 69; AP II, Art. 18; Commentary to the ICRC Customary Law Study, above note 8, Rule 54. See also AP I, Art. 54(2); ICRC Customary Law Study, above note 8, Rule 54.

40 See e.g. AP II, Art. 18(1): “traditional functions [of Red cross and Red Crescent organizations] in relation to the victims of the armed conflict”. See also Commentary to AP II, Art. 18, para. 4869, which refers to “humanitarian activities”.

41 AP I, Art. 70; AP II, Art. 18(2); see also Commentary to AP II, Art. 18, para. 4889, describing the guarantees that humanitarian organizations must provide.

42 AP I, Art. 71(1). See also Commentary to AP II, Art. 18, para. 4869: “Article 18 is aimed at permitting and facilitating humanitarian activities in non-international armed conflicts for the purpose of assisting victims wherever they are and assuring them the protection to which they are entitled.”

43 Commentary to AP I, Art. 71, para. 2879.

44 See GC IV, Art. 23; AP I, Art. 70 (3).

45 ICRC Customary Law Study, above note 8, Rule 55. See also e.g. Commentary to AP I, Art. 70, para. 2830; Commentary to AP II, Art. 18, para. 4887.

46 AP I, Art. 70(1); Commentary to AP I, Art. 70, paras 2817 and 2821; Commentary to AP II, Art. 18, para. 4889.

47 See Commentary to AP I, Art. 70, paras 2799 ff; Commentary to AP II, Art. 18, § 4889.

48 AP I, Art. 71(4); Commentary to AP I, Art. 71, paras 2898, 2901; Commentary to AP II, Art. 18, para. 4889.

49 AP I, Art. 71(2); ICRC Customary Law Study, above note 8, Rules 31 and 32.

50 Commentary to AP I, Art. 71, para. 2885; Commentary to ICRC Customary Law Study, above note 8, Rules 31 and 32.

51 Commentary to AP I, Art. 70, para. 2858; Commentary to ICRC Customary Law Study, above note 8, Rule 32.

52 Commentary to AP II, Art. 18, para. 4888.

53 ICRC Customary Law Study, above note 8, Rule 56; Commentary to AP I, Art. 71, para. 2871.

54 ICRC Customary Law Study, above note 8, Rule 30; Commentary to AP I, Art. 70, para. 2863.

55 AP I, Art. 71(4); Commentary to AP I, Art. 71, § 2902; Commentary to AP II, Art. 18, paras 4887, 4889(b).

56 ICRC Customary Law Study, above note 8, Rule 56. See above discussion on the term “right of control”.