Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 9 : Activities of the ICRC and other impartial humanitarian organizations
Text of the provision
The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of wounded and sick, medical personnel and chaplains, and for their relief.
Reservations or declarations
None
Contents

A. Introduction
1120  Article 9 grants impartial humanitarian organizations the right to offer, to the Parties to an international armed conflict, to undertake humanitarian activities. The International Committee of the Red Cross (ICRC) is explicitly mentioned as an example of an entity entitled to rely on this provision. Humanitarian activities can take the form of relief or protection.
1121  Access to the potential beneficiaries of humanitarian activities is subject to the consent of the Parties to the conflict concerned. Since 1949, however, international law in general, and international humanitarian law in particular, has evolved to the extent that a Party to an armed conflict is not completely at liberty to decide how it responds to an offer of services made by an impartial humanitarian organization to undertake humanitarian activities. Rather, at all times, the Party must assess the offer in good faith and in line with its international legal obligations with regard to humanitarian needs. Thus, where a Party is unable or unwilling to address the humanitarian needs of such persons, international law requires it to respond positively to an offer by an impartial humanitarian organization to do so in its place. If the humanitarian needs cannot be met otherwise, the refusal of such an offer would be considered arbitrary, and therefore inconsistent with international law. The foregoing is without prejudice to the right of the consenting Party, for reasons of imperative military necessity, to impose measures of control on the humanitarian activities.
1122  The treaty-based right of impartial humanitarian organizations to offer, to the Parties to an armed conflict, to undertake humanitarian activities is often referred to as the right to offer services. In respect of international armed conflict, it has been enshrined in all four Geneva Conventions as common Article 9 (Article 10 in the Fourth Convention). However, the category of persons for whom the said activities may be undertaken differs in each Convention: in the First Convention, it is ‘wounded and sick, medical personnel and chaplains’; in the Second Convention, it is ‘wounded, sick and shipwrecked persons, medical personnel and chaplains’; in the Third Convention, it is ‘prisoners of war’; and lastly, in the Fourth Convention, it is ‘civilian persons’. The difference in wording merely reflects the distinct categories of persons protected by each Convention. That is the case, at least, for the first three Conventions. In the Fourth Convention, however, the category of persons benefiting from the provision in Article 10 (‘civilian persons’) is wider in scope than the category of persons who qualify as ‘protected persons’ on the basis of Article 4. The categories referred to in all four Conventions are not restrictive, however, in that international law has evolved to the point where the right to offer services can be exercised for all persons affected by an armed conflict.
1123  In addition to its Article 10, which relates to international armed conflict in general, the Fourth Convention deals with this topic more specifically, and more forcefully, in the context of an occupation.[1] Additional Protocol I further expands upon the right to offer services in international armed conflict.[2] In parallel, rules governing the right to offer services also exist for non-international armed conflict, as set forth both in common Article 3 of the Geneva Conventions and in Additional Protocol II.[3] This broad legal foundation is unsurprising, and merely reflects the axiom that, irrespective of its legal characterization, every armed conflict generates needs for humanitarian assistance and protection. States have thus recognized that, as a matter of international law, the ICRC and other impartial humanitarian organizations may have a role to play in addressing those humanitarian needs, regardless of how the armed conflict is categorized. As Article 9 applies only to international armed conflict, this commentary does not address humanitarian activities undertaken in the context of a non-international armed conflict.
1124  The ability and willingness of impartial humanitarian organizations to carry out humanitarian activities do not detract from the fact that, as a matter of international law, the primary responsibility for meeting the humanitarian needs of persons affected by an international armed conflict lies with the Parties to the conflict. The activities of impartial humanitarian organizations should only complement, where necessary, the State’s efforts to address those needs itself. This is also why impartial humanitarian organizations have no obligation under international law to offer their services, as is clear from the wording ‘may … undertake’ in Article 9. They can do so at their discretion. For their part, National Red Cross and Red Crescent Societies nevertheless have a duty to consider seriously any request by their own public authorities to carry out humanitarian activities falling within their mandate, provided these activities can be implemented in accordance with the Fundamental Principles of the International Red Cross and Red Crescent Movement (hereinafter ‘the Movement’).[4] This duty stems from the National Societies’ special status and unique auxiliary role to their own public authorities in the humanitarian field – a status articulated in the Movement’s Statutes[5] The Fundamental Principles are listed in the preamble to the Statutes, adopted by the International Conference of the Red Cross and Red Crescent, which brings together the States party to the 1949 Geneva Conventions, as well as the components of the Movement, and can therefore be considered authoritative.[6]
1125  The rules pertaining to the right of impartial humanitarian organizations to offer their services are distinct from the rules obliging the Parties to an international armed conflict, along with other High Contracting Parties to the Geneva Conventions, to allow and facilitate the rapid and unimpeded passage of relief consignments. Whereas the former permit the Parties to the conflict, in certain circumstances, to lawfully refuse an offer of services, the latter stipulate the obligation of these Parties, once they have given their consent to the delivery of humanitarian assistance, to allow and facilitate the passage of such assistance. In other words, having accepted an offer of services, the Party concerned must allow it to be implemented, even if the humanitarian activities are intended for the population under enemy control, but without prejudice to that Party’s right to impose measures of control.[7]
1126  The right to offer services, which is also sometimes referred to as the ‘right of humanitarian initiative’, is not to be confused with the so-called ‘right of humanitarian intervention’ nor with the ‘responsibility to protect’ (R2P), two distinct concepts which have engendered much debate, for example as to whether international law permits measures such as the threat or the use of force against another State when motivated by humanitarian considerations.[8] Similarly, the analysis of Article 9 remains without prejudice to the UN Security Council’s entitlement to act, on the basis of the 1945 UN Charter and in line with the effect of its decisions under international law, as it deems fit with regard to humanitarian activities. These issues are regulated by international law in general and the law on the use of force (jus ad bellum) in particular. Thus, they have to be viewed separately from the issue of humanitarian activities carried out within the framework of Article 9.
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B. Historical background
1127  As early as the 1870–71 Franco-Prussian War, the ICRC initiated activities to restore links between soldiers who had fallen into enemy hands and their families.
1128  The first treaty-based recognition of the work of ‘relief societies for prisoners of war’ that had the ‘object of serving as the channel for charitable effort’ can be found in both the 1899 and the 1907 Hague Regulations.[9] This was the first time a treaty reflected the role of specific humanitarian activities in times of armed conflict.
1129  Work of this nature increased significantly when, during the First World War, the ICRC set up and ran the International Prisoners-of-War Agency.[10] The Agency’s activities involved not only restoring family links, but also the transmission of correspondence, parcels and money to prisoners of war, as well as the repatriation or internment in a neutral country of seriously sick or wounded military personnel. The Agency also developed activities for civilian internees.[11]
1130  In the light of this experience, the 1929 Geneva Convention on Prisoners of War contained the first explicit mention of the ICRC’s right to offer services in relation to the protection of prisoners of war.[12] Article 88 of the 1929 Convention can be considered the direct precursor of Article 9 of the Third Convention. It stated that ‘[t]he foregoing provisions [dealing with the execution of the Convention] do not constitute any obstacle to the humanitarian work which the International Red Cross Committee [sic] may perform for the protection of prisoners of war with the consent of the belligerents concerned’.[13]
1131  When comparing Article 88 of the 1929 Convention and common Article 9 of the 1949 Conventions, three differences can be identified:
(i) The 1929 text confers the right to offer services only on the ICRC, whereas the 1949 text confers this right both on the ICRC and on ‘any other impartial humanitarian organization’. This addition was the result of a proposal submitted during the 1949 Diplomatic Conference and adopted with little substantive discussion.[14] The drafters of the Geneva Conventions deliberately chose the language ‘any other impartial humanitarian organization’ and did not indicate a need for this organization to have been previously ‘internationally recognized’[15] nor to be of an international character. Hence, the organization wishing to qualify on the basis of common Article 9 does not have to be active on the territory of more than one State.[16]
(ii) The 1929 text speaks only of ‘protection’ as a humanitarian activity, whereas the 1949 text added ‘relief’.[17] While all impartial humanitarian organizations are entitled to offer their services in the fields of humanitarian relief and protection, it must be stressed that the High Contracting Parties have, through various provisions of the Geneva Conventions in which the ICRC has explicitly been mentioned, conferred a unique mandate on the ICRC for certain activities falling within the realm of humanitarian protection. This is the case, for example, for visits to prisoners of war (see Article 126(4) of the Third Convention). For a discussion of the differences yet close link between the humanitarian activities of ‘relief’ and of ‘protection’, see section C.2.a.
(iii) The 1929 text conferred the right to offer services only in connection with the protection of ‘prisoners of war’ (Third Convention), whereas this right has now, in the 1949 text, been inserted in all four Geneva Conventions, making it possible to offer also to undertake humanitarian activities for the ‘wounded and sick, medical personnel and chaplains’ (First Convention), for ‘wounded, sick and shipwrecked persons, medical personnel and chaplains’ (Second Convention), and for ‘civilian persons’ (Fourth Convention).[18]
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C. Discussion
1. ‘The provisions of the present Convention constitute no obstacle’
1132  The significance of the opening words of Article 9 resides in the affirmation that nothing in the Geneva Conventions may be interpreted as restricting the right of impartial humanitarian organizations to offer their services to all Parties to the conflict. Indeed, both the Geneva Conventions and their Additional Protocols contain a number of provisions which explicitly foresee a role for the ICRC, National Red Cross and Red Crescent Societies and other relief societies.[19] The specific feature of the right to offer services, as enshrined in Article 9, is that an offer of services need not be restricted to the activities referred to in such provisions; rather, the High Contracting Parties have explicitly recognized that impartial humanitarian organizations are legally entitled to offer to perform any humanitarian activity which they deem pertinent to meet the humanitarian needs engendered by the armed conflict. Similarly, for the ICRC or any other impartial humanitarian organization to make an offer of services on the basis of common Article 9, it does not need to be acting as a substitute for the Protecting Powers in the sense of common Article 10(3). The right to offer services confers an autonomous mandate on the ICRC or any other impartial humanitarian organization to offer to assist and protect persons affected by an armed conflict. This mandate is separate from the ICRC’s potential role as a substitute for the Protecting Powers.[20]
1133  Article 9 confers on the ICRC or any other impartial humanitarian organization the right to offer its services even in the absence of any prior approach or request made by the Party to the conflict concerned. When an offer of services is made, it may be regarded neither as an unfriendly act, nor as an unlawful interference in a State’s domestic affairs in general or in the conflict in particular. Nor may it be regarded as recognition of or support to a Party to the conflict.[21] Therefore, an offer of services and its implementation may not be prohibited or criminalized by virtue of legislative or other regulatory acts. Conversely, nothing precludes a Party to an armed conflict from inviting the ICRC or another impartial humanitarian organization at any time to undertake certain humanitarian activities. However, as a matter of international law, these organizations are not obliged to accept such a request; it is at their discretion to decide whether or not to respond positively to it.[22] For the treaty-based right to offer services to be effective, however, a High Contracting Party which is a Party to an international armed conflict must make sure that those in charge of making the decision in this regard are available to receive it.
1134  For the purposes of Article 9, there is no need for the organization offering its services and for the entity receiving the offer to agree on the legal classification of the situation, i.e. whether it qualifies as an armed conflict and, if so, if it is international or non-international in character. Similarly, an offer to undertake humanitarian activities has no bearing on the international legal status of the entity to which the offer is made.[23] Thus, the fact that the offer is made to the government of a State which some States do not recognize as the legitimate government has no impact on that government’s claim for recognition.[24] Nor may it be interpreted as endorsement of the reasons for which the entity is engaged in an armed conflict.
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2. Humanitarian activities undertaken for protected persons
a. Humanitarian activities
1135  The scope of application of Article 9 is limited to humanitarian activities to be undertaken in international armed conflict. The text of the First Convention indicates that ‘humanitarian activities’ can be for the ‘protection’ and for the ‘relief’ of the wounded and sick, medical personnel and chaplains, although no definition of these concepts is given in the Geneva Conventions.[25]
1136  While ‘protection’ and ‘assistance’ (a term which can be used interchangeably with the term ‘relief’) are separate notions, they frequently interconnect and overlap in practice: assisting persons affected by an armed conflict also protects them, and vice-versa.[26] When persons affected by an armed conflict receive assistance, they are protected in the sense that impartial humanitarian organizations are present in their midst and may thus help to deter violations of the legal framework protecting the wounded and sick, medical personnel and chaplains. Conversely, better compliance with the First Convention by the Parties to a conflict could mean, for example, that the medical service has access to adequate medical supplies with which to tend to the wounded and sick.
1137  Indeed, the aim of both types of humanitarian activities is to safeguard the lives and dignity of persons affected by an armed conflict. It will depend on individual circumstances whether one or other type of humanitarian activity suffices to achieve that objective, or whether both types of activities are needed simultaneously. An indication of what qualifies as ‘humanitarian’ can be found in the definition of the Fundamental Principle of ‘humanity’. This principle, which has also been endorsed by the International Court of Justice,[27] is the first of the Movement’s seven Fundamental Principles. From the definition of humanity, it can be inferred that humanitarian activities are all activities which ‘prevent and alleviate human suffering wherever it may be found’, and the purpose of which is to ‘protect life and health and to ensure respect for the human being’.[28]
1138  Various documents emanating from the humanitarian community contain similar definitions of ‘humanitarian’.[29] The definitions of some of the other Fundamental Principles, such as impartiality (see paras 1160–1162), have been similarly adopted. Thus, concepts which originated in international humanitarian law have been mainstreamed as operational concepts for the wider humanitarian community, including for activities undertaken in peacetime.
1139  In the context of an armed conflict, ‘humanitarian activities’ are those that seek to preserve the lives, security, dignity, and mental and physical well-being of persons affected by the conflict, or to restore that well-being if it has been infringed upon. These activities must be concerned with human beings as such. Thus, as also informed by the requirement of ‘impartiality’ (see paras 1160–1162), humanitarian activities and the way in which they are conducted must not be affected by any political or military consideration, or by any consideration related to the person’s past behaviour, including behaviour which is potentially punishable on the basis of criminal or disciplinary norms. Humanitarian activities seek to preserve human life, security, dignity and physical and mental well-being with no other motive than to accomplish this objective. Lastly, those offering to undertake humanitarian activities focus solely on the needs of the persons affected by an armed conflict, irrespective of the rights which these persons may additionally have on the basis of applicable human rights law.
1140  Besides the above conceptual guidance, the High Contracting Parties have not drawn up a list of activities which may qualify in their eyes as humanitarian activities. This is in line with the fact that it is impossible to anticipate the humanitarian needs that might arise in a particular armed conflict; as the nature of armed conflicts may change, so may the humanitarian needs they engender. It is impossible to generically define , especially when an armed conflict lasts for several years, or even decades, which activities are, in a particular context, of a nature to safeguard the lives, security, dignity, and mental and physical well-being of the affected persons.
1141  Article 9 confers the right to offer to conduct humanitarian activities only on the ‘International Committee of the Red Cross or any other impartial humanitarian organization’ (for an analysis of these terms, see section C.3). However, it should be noted that relief activities may also be carried out by other actors, such as State organs, that do not qualify as impartial humanitarian organizations. While such activities may alleviate human suffering, they are not covered by common Article 9.[30]
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b. Protection
1142  Article 9 entitles the ICRC or any other impartial humanitarian organization to offer to undertake humanitarian activities for the ‘protection’ of certain categories of persons affected by an international armed conflict. In its ordinary meaning, to ‘protect’ means to ‘keep safe from harm or injury’.[31] For its part, humanitarian law has as one of its core objectives to ‘protect’ people in situations of armed conflict against abuses of power by the Parties to the conflict.
1143  Article 9 provides no guidance on exactly which activities impartial humanitarian organizations may undertake to ensure that the authorities and other relevant actors protect people by complying with the applicable legal framework. Even among impartial humanitarian organizations themselves there are differing views on what constitute protection activities. For the ICRC and the Inter-Agency Standing Committee,[32] the concept of ‘protection’ encompasses all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, including international humanitarian law, international human rights law and refugee law.[33]
1144  Accordingly, in the context of humanitarian law, ‘protection activities’ refer to all activities that seek to ensure that the authorities and other relevant actors fulfil their obligations to uphold the rights of individuals affected by the armed conflict (beyond their mere survival).[34] Protection activities include those which seek to prevent violations of humanitarian law from being committed in the first place, for example by making representations to the authorities or by making the law better known, and those which seek to ensure that the authorities cease or put a stop to any violations of the norms applicable to them.
1145  When pursuing its protection activities in the context of an armed conflict, the ICRC aims to ensure that the relevant rules of humanitarian law or other fundamental rules protecting persons in situations of violence are observed and implemented by the authorities. Such activities may include visits to persons deprived of their liberty.[35] The ICRC may also offer its good offices to the Parties to the conflict, including to facilitate the settlement of disagreements as to the application or interpretation of the provisions of the First Convention or the implementation of any arrangement concluded by the Parties.[36] Within the context of the First Convention, offers of services may also pertain to activities such as the removal of the wounded, sick and dead from the battlefield.[37] More generally, the ICRC may propose to undertake any activity which it deems relevant for the monitoring of the implementation of the applicable rules of humanitarian law or of other fundamental rules protecting persons in situations of violence.[38]
1146  For its part, both in its protection and its assistance activities, the ICRC uses various approaches, such as persuasion, on a bilateral and confidential basis to induce the authorities to comply with the rules applicable to them, including those regarding the provision of essential services.[39] Where the ICRC considers that its efforts are not going to bring about a satisfactory, timely response from the authorities, and that the problem is a serious one, it may simultaneously engage in appropriate support to and/or substitution for the direct provision of such services.[40] When this happens, it should still be kept in mind that it is the Parties to the conflict which bear the primary responsibility for ensuring that the humanitarian needs are met.[41] When, despite its efforts and in the case of major and repeated violations of humanitarian law, it fails to convince the authorities to assume their responsibilities in this respect, the ICRC may resort to other methods, including, under certain conditions, public denunciation.[42]
1147  Beyond the Geneva Conventions, the term ‘protection’ has come to mean different things to different actors, and not all such activities fall within the scope of Article 9. In practice, this complicates the conceptual analysis. For example, when a military actor such as a UN-authorized peace-enforcement mission has been mandated to ‘protect’ the civilian population, different activities and approaches may come into play, including the use of armed force. Despite the use of the same term, the approach of an impartial humanitarian organization to ‘protection’ activities will be very different.
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c. Relief/assistance
1148  Article 9 entitles the ICRC or any other impartial humanitarian organization to offer to undertake relief activities for persons affected by an international armed conflict. In its ordinary meaning, ‘relief’ means ‘the alleviation or removal of pain, anxiety, or distress’.[43] As used in the Geneva Conventions, the term ‘relief’ mostly applies to activities to address humanitarian needs arising in emergency situations. It should be read in conjunction with the broader term ‘assistance’ used in Article 81(1) of Additional Protocol I, which seeks also to cover longer-term as well as recurrent and even chronic needs.[44] Neither relief nor assistance are 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 needs for humanitarian assistance may not necessarily be the same in every context and may evolve over time.
1149  ‘Assistance activities’ refers to all activities, services and the delivery of goods, carried out primarily in the fields of health, water, habitat (the creation of a sustainable living environment) and economic security (defined by the ICRC as ‘the condition of an individual, household or community that is able to cover its essential needs and unavoidable expenditures in a sustainable manner, according to its cultural standards’).[45] All of these activities seek to ensure that persons caught up in an armed conflict are able to survive and live in dignity. In practice, the type of relief activities will differ depending on who the beneficiaries are and the nature of their needs. Relief activities for persons wounded on the battlefield, for example, will not be the same as those undertaken for the benefit of prisoners of war in a camp. It is one of the core principles of humanitarian law that, whatever the relief activity, it should never be considered as being of a nature to reinforce the enemy’s military capabilities, including, for example, the provision of medical aid to wounded combatants.
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d. Beneficiaries
1150  In Article 9 of the First Convention, the persons for whom humanitarian activities may be undertaken are the ‘wounded and sick, medical personnel and chaplains’. The term ‘wounded and sick’ refers to the persons covered by Articles 12 and 13. The term ‘medical personnel’ refers to the persons covered by Articles 24, 25, 26 and 27. The term ‘chaplains’ refers to ‘chaplains attached to the armed forces’ covered by Article 24 and, where applicable, to religious personnel working on the basis of Article 26 or 27.[46] While not explicitly mentioned in Article 9, the right to offer services can also relate to activities for the benefit of dead persons, since a range of obligations are mentioned in their regard in Articles 15, 16 and 17. Similarly, while not mentioned explicitly as such, it flows from the logic of the First Convention that the right to offer services can, depending on the circumstances, also be exercised to protect, or safeguard the functioning of, objects protected under the First Convention (such as military medical establishments and medical aircraft). These objects are protected because of their benefit to the persons protected under the First Convention.[47]
1151  Armed conflict affects persons other than those explicitly identified as falling into, and meeting the conditions of, the categories of beneficiaries enumerated in the four different versions of common Article 9 (Article 10 of the Fourth Convention). Nowhere is it stated that these categories of persons are the only ones for whom the ICRC or any other impartial humanitarian organization may offer its services.[48] Furthermore, the right to offer services can be exercised for the benefit of persons regardless of whether they qualify as ‘protected persons’ in the sense of one of the four Geneva Conventions. This is demonstrated by Article 10 of the Fourth Convention, which uses the term ‘civilian persons’ rather than the narrower term ‘protected persons’ as defined in Article 4 of the Fourth Convention.
1152  Further, for persons to benefit from humanitarian activities, they do not have to be the victims of a violation of an applicable legal standard. This broad interpretation of who may be the beneficiaries of humanitarian activities is reflected in Article 81(1) of Additional Protocol I, which refers to ‘the victims of conflicts’, and is confirmed by subsequent State practice: when consenting to an offer of services, Parties to a conflict typically do not limit their consent for the humanitarian activities to those persons who qualify as ‘protected persons’ in the sense of the Geneva Conventions. Lastly, the foregoing remains without prejudice to the fact that other activities of impartial humanitarian organizations, such as those in the realm of prevention (for example: raising awareness of international humanitarian law) can and are exercised for the benefit of able-bodied combatants.
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3. The ICRC or any other impartial humanitarian organization
a. The International Committee of the Red Cross
1153  The ICRC is the only organization mentioned by name in both Article 9 and common Article 3(2) regarding the right to offer services. In these contexts, the ICRC is referred to as an example of an organization which qualifies as an impartial humanitarian organization. For the drafters of the Conventions, the ICRC epitomizes the essential characteristics of an impartial humanitarian organization. That said, having conferred on the ICRC, as an example of an impartial humanitarian organization, the right to offer its services, States have signalled that this explicit mention is contingent upon the ICRC operating at all times in that capacity. This requirement extends, by inference, to any other organization seeking to fall within the scope of Article 9.
1154  In the 1949 Geneva Conventions and their 1977 Additional Protocols as they apply to international armed conflict, there are a considerable number of provisions in which the High Contracting Parties have explicitly granted the ICRC the right to offer to perform specific humanitarian activities.[49] In parallel, the Statutes of the International Red Cross and Red Crescent Movement also provide a legal basis for the ICRC to offer its services in such conflicts.[50] Article 5(3) of the Statutes states that ‘[t]he International Committee [of the Red Cross] may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution’.[51]
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b. Other impartial humanitarian organizations
1155  The ICRC has no monopoly on the right to offer services. Article 9 confers the same right on ‘any other impartial humanitarian organization’. This concept has not been defined, nor further clarified, in the Geneva Conventions.[52]
1156  When these words were inserted in the text during the 1949 Diplomatic Conference, the type of organizations the High Contracting Parties had in mind was limited mostly to National Red Cross and Red Crescent Societies.[53] Since 1949, the number and diversity of organizations which consider themselves to be impartial humanitarian organizations in the sense of Article 9, and which are recognized as such by Parties to an armed conflict, have grown significantly to include both certain non-governmental organizations and certain intergovernmental organizations.
1157  For an organization to qualify as a ‘humanitarian organization’, there is no requirement that the scope of its activities be limited to humanitarian activities.[54] Thus, an organization that focused solely on development activities prior to the outbreak of the armed conflict may subsequently become, for the purposes of Article 9, a humanitarian organization, without prejudice to the possibility of the organization concurrently pursuing activities of a different nature elsewhere. Article 9 does, however, require that the entity wishing to offer its services be an ‘organization’. Thus, a loose association of individuals, while their activities may alleviate human suffering, would not qualify on the basis of this provision.[55] Nor would a private person wishing to engage in charitable activities. At all times, an organization wishing to qualify as a ‘humanitarian organization in the sense of this provision ought to be capable of complying with professional standards for humanitarian activities.[56] Otherwise, in practice there is a risk that the authorities to whom the offer of services is made may doubt the impartial and humanitarian nature of the organization.
1158  Humanitarian organizations require financial means to sustain their staff and operations and to purchase the necessary goods and services. Therefore, the fact that money is involved can by no means be considered as depriving a qualifying organization or its activities of their ‘humanitarian’ character. Further, provided the organization continues to act as an impartial humanitarian organization nothing precludes it from having a relationship with an economic actor such as a private or a State-owned corporation. Examples of such relationships include: when economic actors with the capacities to deliver humanitarian services, such as a commercial aviation company used for the transport of relief goods, sell their services to impartial humanitarian organizations at a profit; or when economic actors offer their services for free to impartial humanitarian organizations, for example as part of corporate social responsibility programmes.
1159  While there are a wide variety of instances in which economic actors can be involved in humanitarian activities, even when they provide free services within the framework of a particular humanitarian activity, for example as part of a corporate social responsibility programme, their otherwise profit-making profile would preclude them from qualifying in their own right as a humanitarian organization. An example of such involvement would be the delivery of humanitarian services directly by an economic actor, either based on a contractual relationship with an impartial humanitarian organization or on its own initiative. Thus, by not qualifying as an impartial humanitarian organization, an economic actor may not invoke the right to offer services in the sense of Article 9.
1160  The Geneva Conventions require a humanitarian organization wishing to offer its services on the basis of Article 9 to be ‘impartial’. Impartiality refers to the attitude to be adopted vis-à-vis the persons affected by the armed conflict when planning and implementing the proposed humanitarian activities. As one of the Fundamental Principles applicable to all components of the Movement, ‘impartiality’ is the requirement not to make any ‘discrimination as to nationality, race, religious beliefs, class or political opinions’ or, for that matter, any other similar criteria.[57] Further, the Fundamental Principle of impartiality, which has also been endorsed by the International Court of Justice,[58] requires the components of the Movement to ‘endeavou[r] to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress’. As a matter of good practice, this definition is applied also by many actors outside the Movement.
1161  For an organization to qualify as an ‘impartial humanitarian organization’, it does not suffice for it to claim unilaterally that it qualifies as such: it will need to make sure that it operates at all times in an impartial and humanitarian manner. In practice, it matters that the Party to the armed conflict to which the offer of services is made perceives the organization to be both impartial and humanitarian, and that the Party also trusts that it will behave accordingly.
1162  The principle of impartiality applies at both the planning and the implementation stages of any humanitarian activity: only the needs of the persons affected by the conflict may inspire the proposals, priorities and decisions of humanitarian organizations when determining which activities to undertake and where and how to implement them (for example, who receives medical assistance first).
1163  In order for an impartial humanitarian organization to qualify as such in the sense of Article 9, there is no requirement as to where it has its headquarters, which may be outside the territory of the States that are party to the conflict in question.[59]
1164  The concept of impartiality is distinct from that of neutrality. Article 9 does not require organizations wishing to qualify on the basis of this provision to be ‘neutral’. In the context of humanitarian activities, ‘neutrality’ refers to the attitude to be adopted towards the Parties to the armed conflict. Neutrality is also one of the Movement’s Fundamental Principles, described as follows: ‘In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.’ Although not a requirement of this provision, in practice there are contexts in which a proven attitude of neutrality will facilitate an organization’s acceptance by the Parties to the conflict concerned. By the same token, an impartial humanitarian organization which is, or is perceived to be, in favour of one of the Parties to the conflict may not be so accepted.
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4. ‘subject to the consent of the Parties to the conflict concerned’
a. Requirement of consent
1165  Since the adoption of the 1949 Geneva Conventions, the treaty-based requirement to seek and obtain the consent of the Parties to the conflict concerned has become the most debated aspect of the legal framework applicable to humanitarian activities in armed conflict.[60] On the one hand, the High Contracting Parties have conferred on the ICRC and on other impartial humanitarian organizations the right to offer unilaterally to undertake humanitarian activities. On the other hand, a plain reading of Article 9 indicates that this right does not necessarily constitute a right of access, i.e. a guarantee of being able to carry out the proposed humanitarian activities. Access is conditional on the ‘consent of the Parties to the conflict concerned’.
1166  For the purpose of this provision, the words ‘the Parties to the conflict concerned’ need to be construed narrowly; consent only needs to be sought and obtained from the High Contracting Party which (i) qualifies as a ‘Party’ to the international armed conflict in question, and (ii) is ‘concerned’ because the proposed humanitarian activities will take place on its territory or in an area under its control, as is the case for an Occupying Power.[61] Thus, the opposing Party to the international armed conflict does not need to be asked for its consent on the basis of Article 9. This is the case even when, for example, the proposed relief convoys need to pass through the opposing Party’s territory. In that instance – while a different set of rules regulate its position with regard to its obligation to allow and facilitate ‘passage’ (see para. 1168) – that Party is not, for the purpose of Article 9, ‘concerned’ because the proposed humanitarian activities are not going to take place on its territory.[62] However, its consent will need to be sought on the basis of general international law.[63]
1167  Similarly, as a matter of law applicable to international armed conflict, consent on the basis of Article 9 for humanitarian activities to be undertaken on the territory or in an area under the control of a Party to the conflict will not need to be sought and obtained from a neutral Power when the proposed humanitarian activities leave from, or transit through, its territory: it is not ‘concerned’ in the sense of Article 9. Again in this case, however, the neutral Power’s consent will need to be sought on the basis of general international law.[64]
1168  It is at this juncture that the distinction – already referred to in the introduction (see para. 1125) – between seeking and obtaining the consent of a Party to the conflict for access to undertake humanitarian activities, on the one hand, and a Party’s obligation to allow and facilitate the passage of humanitarian activities, on the other hand, comes into play. On the basis of and under the conditions set down in Article 23 of the Fourth Convention and Article 70(2) of Additional Protocol I, all High Contracting Parties, whether or not they qualify as Parties to the conflict, have an obligation to allow and facilitate the rapid and unimpeded passage of relief consignments, equipment and personnel destined for the civilian population, even that of an opposing Party, i.e. they must allow the acceptance of an offer of services to be implemented.[65] If those States were to refuse to allow and facilitate relief schemes, it would in effect preclude the humanitarian needs of the persons affected by the armed conflict from being addressed and thus render the consent given by the Parties to the conflict void.
1169  Article 9 does not indicate how consent is to be manifested. This may be through a written reply to the organization which has made the offer of services but can also be conveyed orally. In the absence of a clearly communicated approval, the impartial humanitarian organization can make sure that the Party to the conflict concerned consents at least implicitly, by acquiescence, to the proposed humanitarian activities of which that Party has been duly notified in advance.
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b. Consent may not be arbitrarily withheld
1170  The Geneva Conventions provide no guidance as to whether there are circumstances in which a Party to the conflict may lawfully refuse its consent to an offer to undertake humanitarian activities which, in the context of the First Convention, will be those carried out for the benefit of the wounded and sick and medical and religious personnel covered by the First Convention.
1171  The legal assessment of the situation differs depending on whether the offer of services is made to an Occupying Power (not dealt with here)[66] or to a Party to an international armed conflict other than an Occupying Power (the situation dealt with here).
1172  In 1949, the understanding of the requirement to seek and obtain the consent of the Parties to the conflict concerned was set in the context of States’ nearly unfettered sovereignty: a Party to the armed conflict receiving an offer of services did not see its full discretion curtailed by any rules of international law. Already at the time, however, it was understood that when a Party to the conflict refused an offer of services, it would bear international legal responsibility for any ensuing consequences of a nature or effect to violate its own humanitarian obligations towards the intended beneficiaries.[67]
1173  Since 1949, international law in general, and humanitarian law in particular, has evolved to the extent that a Party to an international armed conflict to which an offer of services is made by an impartial humanitarian body is not at complete liberty to decide how to respond to such an offer. It has now become accepted that there are circumstances in which a Party is obliged, as a matter of international law, to grant its consent to an offer of humanitarian activities by an impartial humanitarian organization. In other words, there are circumstances in which a refusal of such an offer will entail that Party’s international legal responsibility.
1174  In particular, humanitarian law, as informed by subsequent State practice, has evolved to the point where one can conclude that consent may not be refused on arbitrary grounds.[68] Thus, any impediment(s) to humanitarian activities must be based on valid reasons, and the Party to the conflict whose consent is sought must assess any offer of services in good faith[69] and in line with its international legal obligations in relation to humanitarian needs. Thus, where a Party to an international armed conflict is unwilling or unable to address those persons’ humanitarian needs, it must accept an offer of services from an impartial humanitarian organization. If humanitarian needs cannot be met otherwise, the refusal of an offer of services would be arbitrary, and therefore in violation of international law.
1175  International law does not provide authoritative clarification on how to interpret the criterion of ‘arbitrariness’.[70] This assessment remains context-specific. Nevertheless, there are instances in which a refusal to grant consent will clearly not be considered arbitrary. This will be the case, for example, if the State to which the offer is made is itself able and willing to address the humanitarian needs and, importantly, actually does so in an impartial manner. Conversely, refusal may be considered arbitrary, and therefore unlawful, if it entails a violation of the Party’s legal obligations under humanitarian law or other fields of international law, including applicable human rights law. This will be the case, for example, when the Party concerned is unable or unwilling to provide humanitarian assistance to the persons affected by the armed conflict, and even more so if their basic needs enabling them to live in dignity are not met.
1176  Further, it must be kept in mind that the use of starvation of the civilian population as a method of warfare is prohibited.[71] Therefore, where a lack of supplies is intended to, or can be expected to, result in the starvation of the civilian population, there is no valid reason to refuse an impartial humanitarian organization’s offer to undertake humanitarian activities.[72] Under the 1998 ICC Statute, ‘[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’ is a war crime in international armed conflict.[73]
1177  Similarly, the denial of consent for the purpose, implied or express, of exacerbating civilian suffering would also qualify as arbitrary. A refusal to grant consent may also be considered arbitrary when it is based on adverse distinction, i.e. when it is designed to deprive persons of a certain nationality, race, religious beliefs, class or political opinion of needed humanitarian relief or protection.
1178  Military necessity is no valid ground under humanitarian law to turn down a valid offer of services or to deny in their entirety the humanitarian activities proposed by an impartial humanitarian organization.
1179  At all times, the consent of a Party to the undertaking of humanitarian activities remains without prejudice to that Party’s entitlement to impose measures of control. Such measures may include: verifying the nature of the assistance; prescribing technical arrangements for the delivery of the assistance; and temporarily restricting humanitarian activities for reasons of imperative military necessity.[74] If verification results in the conclusion that the activity is neither impartial nor humanitarian in nature, access may be denied. The design and implementation of these controls and restrictions may not, however, be such that, for all practical intents and purposes, they amount to a refusal of consent. In other words, the right of control recognized by humanitarian law should not unduly delay relief operations or make their implementation impossible. In this regard, imperative military necessity may be invoked in exceptional circumstances only in order to regulate – but not prohibit – the access of impartial humanitarian organizations, and can only temporarily and geographically restrict the freedom of movement of humanitarian personnel.[75] Such reasons of imperative military necessity might include, for example, preventing interference with an ongoing or imminent military operation.
1180  Humanitarian law does not indicate what happens when a State party to an international armed conflict refuses its consent in circumstances which violate its international legal obligations. Lastly, the lawfulness of an impartial humanitarian organization undertaking humanitarian activities in defiance of an arbitrary refusal of its offer of services would need to be assessed on the basis of other applicable rules of international and domestic law.[76]
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Select bibliography
Barrat, Claudie, Status of NGOs in International Humanitarian Law, Brill Nijhoff, Leiden, 2014.
Blondel, Jean-Luc, ‘L’assistance aux personnes protégées’, Revue international de la Croix-Rouge, Vol. 69, No. 767, October 1987, pp. 471–489.
– ‘The meaning of the word “humanitarian” in relation to the Fundamental Principles of the Red Cross and Red Crescent’, International Review of the Red Cross, Vol. 29, No. 273, December 1989, pp. 507–515.
– ‘Genèse et évolution des principes fondamentaux de la Croix-Rouge et du Croissant Rouge’, Revue international de la Croix-Rouge, Vol. 73, No. 790, August 1991, pp. 369–377.
Bouchet-Saulnier, Françoise, ‘Consent to humanitarian access: An obligation triggered by territorial control, not States’ rights’, International Review of the Red Cross, Vol. 96, No. 893, March 2014, pp. 207–217.
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, Book II, Part Two.
de Geouffre de La Pradelle, Paul, ‘Une conquête méthodique : le droit d’initiative humanitaire dans les rapports internationaux’, in Christophe Swinarski (ed.), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, Martinus Nijhoff Publishers, The Hague, 1984, pp. 945–950.
Fast, Larissa, ‘Unpacking the principle of humanity: Tensions and implications’, International Review of the Red Cross, Vol. 97, Nos 897/898, Spring/Summer 2015, pp. 111–131.
Forsythe, David P., ‘International Humanitarian Assistance: The Role of the Red Cross’, Buffalo Journal of International Law, Vol. 3, No. 2, 1996–1997, pp. 235–260.
Gentile, Pierre, ‘Humanitarian organizations involved in protection activities: a story of soul-searching and professionalization’, International Review of the Red Cross, Vol. 93, No. 884, December 2011, pp. 1165–1191.
Gillard, Emanuela-Chiara, ‘The law regulating cross-border relief operations’, International Review of the Red Cross, Vol. 95, No. 890, June 2013, pp. 351–382.
Harroff-Tavel, Marion, ‘Neutrality and Impartiality – The importance of these principles for the International Red Cross and Red Crescent Movement and the difficulties involved in applying them’, International Review of the Red Cross, Vol. 29, No. 273, December 1989, pp. 536–552.
Heintze, Hans-Joachim and Lülf, Charlotte, ‘Non-State Actors Under International Humanitarian Law’, in Math Noortmann, August Reinisch and Cedric Ryngaert (eds), Non-State Actors in International Law, Hart Publishing, Oxford, 2015, pp. 97–111.
Institute of International Law, ‘Humanitarian Assistance’, Resolution of the Bruges Session, 2 September 2003, available at http://www.idi-iil.org/idiE/resolutionsE/2003_bru_03_en.PDF.
ICRC, ‘ICRC Q&A and lexicon on humanitarian access’, International Review of the Red Cross, Vol. 96, No. 893, March 2014, pp. 359–375.
The Fundamental Principles of the International Red Cross and Red Crescent Movement, ICRC, Geneva, 2015.
Junod, Sylvie S., ‘Le mandat du CICR durant un conflit armé. Le mandat et les activités du Comité international de la Croix-Rouge’, The Military Law and Law of War Review, Vol. 43, 2004, pp. 103–110.
Kalshoven, Frits, ‘Impartiality and Neutrality in Humanitarian Law and Practice’, International Review of the Red Cross, Vol. 29, No. 273, December 1989, pp. 516–535.
Kolb Robert, ‘De l’assistance humanitaire : la résolution sur l’assistance humanitaire adoptée par l’Institut de droit international à sa session de Bruges en 2003’, Revue international de la Croix-Rouge, Vol. 86, No. 856, December 2004, pp. 853–878.
Kuijt, Emilie Ellen, Humanitarian Assistance and State Sovereignty in International Law: Towards a Comprehensive Framework, Intersentia, Cambridge, 2015.
Labbé, Jérémie, and Daudin, Pascal, ‘Applying the humanitarian principles: Reflecting on the experience of the International Committee of the Red Cross’, International Review of the Red Cross, Vol. 97, No. 897/898, Spring/Summer 2015, pp. 183–210.
Lattanzi, Flavia, ‘Humanitarian Assistance’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 231–255.
Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, by Dapo Akande and Emanuela-Chiara Gillard, commissioned & published by UN Office for the Coordination of Humanitarian Affairs, 2016.
Plattner, Denise, ‘Assistance to the civilian population: the development and present state of international humanitarian law’, International Review of the Red Cross, Vol. 32, No. 288, June 1992, pp. 249–263.
Ryngaert, Cédric, ‘Humanitarian Assistance and the Conundrum of Consent: A Legal Perspective’, Amsterdam Law Forum, Vol. 5, No. 2, 2013, pp. 5–19.
Sandoz, Yves, ‘Le droit d’initiative du Comité international de la Croix-Rouge’, German Yearbook of International Law, Vol. 22, 1979, pp. 352–373.
Schwendimann, Felix, ‘The legal framework of humanitarian access in armed conflict’, International Review of the Red Cross, Vol. 93, No. 884, December 2011, pp. 993–1008.
Spieker, Heike, ‘Humanitarian Assistance, Access in Armed Conflict and Occupation’, version of March 2013, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
Stoffels, Ruth Abril, ‘Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps’, International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 515–546.
Swinarski, Christophe, ‘La notion d’un organisme neutre et le droit international’, in Christophe Swinarski (ed.), Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 819–835.
Swiss Confederation, Federal Department of Foreign Affairs, Humanitarian Access in Situations of Armed Conflict: Practitioners’ Manual, 2014.
Toebes, Brigit, ‘Health and Humanitarian Assistance: Towards an Integrated Norm under International Law’, Tilburg Law Review, Vol. 18, No. 2, 2013, pp. 133–151.
Vukas, Budislav, ‘Humanitarian Assistance in Cases of Emergency’, version of March 2013, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.

1 - See, in particular, Articles 59 and 63 of the Fourth Convention (expanded upon by Article 69 of Additional Protocol I).
2 - See Additional Protocol I, Article 81. The Protocol also expands upon the rules applicable to humanitarian relief operations in international armed conflict; see Articles 70–71.
3 - See common Article 3(2) of the Geneva Conventions and Article 18(1) of Additional Protocol II.
4 - 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 2, Specific nature of the International Red Cross and Red Crescent Movement in action and partnerships and the role of National Societies as auxiliaries to the public authorities in the humanitarian field, para. 4(a).
5 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 4(3).
6 - The Fundamental Principles were first proclaimed by the 20th International Conference of the Red Cross in Vienna in 1965. They were then integrated into the preamble to the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross in 1986 and amended in 1995 and 2006. See also the mention of the ‘principles laid down by the International Red Cross Conferences’ in Article 44(2) of the First Convention. Similarly, Article 81(2) of Additional Protocol I speaks of ‘the fundamental principles of the Red Cross as formulated by the International Conferences of the Red Cross’.
7 - See Article 23 of the Fourth Convention and Articles 70–71 of Additional Protocol I (in particular with regard to the obligation of the Parties to the conflict and each High Contracting Party to ‘allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel’; see Article 70(2)–(3) of Additional Protocol I). See also ICRC Study on Customary International Humanitarian Law (2005), Rules 55 and 56 (applicable in both international and non-international armed conflict). For a further discussion, see para. 1179.
8 - Vaughan Lowe and Antonios Tzanakopoulos, ‘Humanitarian Intervention’, version of May 2011, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, para. 2, http://opil.ouplaw.com/home/EPIL.
9 - Article 15 of the 1899 Hague Regulations and (substantively identical) Article 15 of the 1907 Hague Regulations.
10 - For a historical overview, see Gradimir Đjurović, The Central Tracing Agency of the International Committee of the Red Cross: Activities of the ICRC for the Alleviation of the Mental Suffering of War Victims, Henry Dunant Institute, Geneva, 1986; and André Durand, History of the International Committee of the Red Cross, Volume II: From Sarajevo to Hiroshima, Henry Dunant Institute, Geneva, 1984, pp. 34–48. During the Second World War, the ICRC operated the ‘Central Agency for Prisoners of War’. In 1960, the name was changed to the ‘Central Tracing Agency’, which exists to this day. For details, see the commentary on Article 123 of the Third Convention.
11 - See Gradimir Đjurović, The Central Tracing Agency of the International Committee of the Red Cross: Activities of the ICRC for the Alleviation of the Mental Suffering of War Victims, Henry Dunant Institute, Geneva, 1986, pp. 50–62.
12 - See Geneva Convention on Prisoners of War (1929), Articles 79 and 88. With some changes, Article 79 became Article 123 of the Third Convention.
13 - During the 1929 Diplomatic Conference, Article 88 was adopted without any substantive discussion. See Proceedings of the Geneva Diplomatic Conference of 1929, p. 520.
14 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 21, 60 and 111.
15 - Ibid. p. 60.
16 - Ibid. p. 111.
17 - The word ‘relief’ was added by the 1947 Conference of Government Experts in connection with the Prisoner of War Convention; see Report of the Conference of Government Experts of 1947, p. 268.
18 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 21. As of 1930, Article 5(2) of the Statutes of the ICRC contained the predecessor of Article 5(3) of the current Statutes of the International Red Cross and Red Crescent Movement. In the 1934 Tokyo Draft Convention on the Protection of Civilians, three rules dealing with humanitarian activities for civilians had been proposed; see draft articles 8, 19 and 25 of that convention.
19 - Examples of such provisions are: common Article 10(3) (Article 11(3) of the Fourth Convention); Article 125(1) of the Third Convention; Article 142 of the Fourth Convention; Article 5(3) and (4) of Additional Protocol I; and Article 18 of Additional Protocol II. With regard to the ICRC, Article 81(1) of Additional Protocol I introduces the following distinction: for tasks explicitly assigned to the ICRC by the Geneva Conventions and Additional Protocol I, it uses the term ‘humanitarian functions’; for all other activities which the ICRC may offer to perform, the provision uses the term ‘any other humanitarian activities’.
20 - On the relationship between the right to offer services and the role of the ICRC as a substitute for the Protecting Powers, see the commentary on Article 10, section J.
21 - See Additional Protocol I, Article 70(1), second sentence: ‘Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts.’ See also ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, para. 242: ‘There 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.’
22 - As to the special status of National Red Cross and Red Crescent Societies in this regard, see para. 1124.
23 - This point is made explicitly in the second sentence of common Article 3(4), which also applies in connection with the exercise of the right to offer services in non-international armed conflict; see the commentary on common Article 3, para. 825.
24 - See also the first sentence of Article 4 of Additional Protocol I, which at least indirectly makes the same point: ‘The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict.’
25 - The concept of ‘humanitarian activities’ is similarly used without being defined in Article 81 of Additional Protocol I.
26 - Since 1949, both the term ‘protection’ and the term ‘relief’ – along with the various activities that are included within these respective notions – have come to mean different things to different actors. For an interpretation of the term ‘protection’ in the context of the right to offer services, see section C.2.b; for an interpretation of the term ‘relief’ in the context of the right to offer services, see section C.2.c.
27 - ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, para. 242.
28 - A further discussion of the principle of ‘humanity’ and related terms can be found in Jean S. Pictet, ‘Commentary on the Fundamental Principles of the Red Cross (I)’, International Review of the Red Cross, Vol. 19, No. 210, June 1979, pp. 130–149. The use of the term ‘life’ in this definition is without prejudice to the fact that humanitarian activities may also be undertaken for the benefit of dead persons, for example the handling of human remains, which must also be done with respect for the person’s dignity (see paras 1145 and 1150). See also Larissa Fast, ‘Unpacking the principle of humanity: Tensions and implications’, International Review of the Red Cross, Vol. 97, Nos 897/898, Spring/Summer 2015, pp. 111–131.
29 - Another definition of the term ‘humanitarian’ can be found in the Sphere Project’s Humanitarian Charter and Minimum Standards in Humanitarian Response, which refers to the ‘humanitarian imperative’ in terms of ‘that action should be taken to prevent or alleviate human suffering arising out of disaster or conflict’ (The Humanitarian Charter, para. 1). On the ‘humanitarian imperative’, see also the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations (NGOs) in Disaster Relief, Geneva, 1994, p. 3: ‘The humanitarian imperative comes first’.
30 - When a High Contracting Party offers to undertake humanitarian activities itself in connection with an international armed conflict opposing two other High Contracting Parties, for example through a specialized ministry, these activities are not covered by Article 9. This point also flows from the use of the disjunctive in Article 59(2) of the Fourth Convention: ‘by States or by impartial humanitarian organizations’ (emphasis added).
31 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1153.
32 - The Inter-Agency Standing Committee (IASC) was established in 1992 in response to UN General Assembly Resolution 46/182 on the strengthening of humanitarian assistance. It is an inter-agency forum for coordination, policy development and decision-making bringing together all the key UN and non-UN humanitarian actors.
33 - See ICRC, Professional Standards for Protection Work Carried Out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence, 2nd edition, ICRC, Geneva, 2013, p. 12, and Inter-Agency Standing Committee, IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters, The Brookings – Bern Project on Internal Displacement, Bern, January 2011, p. 5.
34 - ICRC Protection Policy, April 2008, p. 3.
35 - See Third Convention, Article 126(4), and Fourth Convention, Article 143(5).
36 - See the commentary on Article 6, para. 973 and the commentary on Article 11, section E.6.
37 - See the commentary on Article 15, paras 1490 and 1518.
38 - See also Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(c)–(d) and (g).
39 - The ICRC works on the basis of confidentiality as its main working method. Its confidential approach, however, does not relate only to protection activities, such as in the context of detention. It is a prerequisite for its humanitarian activities as a whole. Confidentiality allows the ICRC to have greater access to victims of armed conflict and other situations of violence, to engage in a bilateral dialogue with the relevant authorities so as to be able to fulfil its humanitarian mission, and to improve the security of its beneficiaries and staff in the field. For further information, see ICRC, ‘The International Committee of the Red Cross’s (ICRC’s) confidential approach. Specific means employed by the ICRC to ensure respect for the law by State and non-State authorities’, reproduced in International Review of the Red Cross, Vol. 94, No. 887, September 2012, pp. 1135–1144. For further information, see ICRC, ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of other fundamental rules protecting persons in situations of violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 393–400.
40 - ICRC Assistance Policy, adopted by the Assembly of the ICRC on 29 April 2004 and reproduced in International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 677–693, at 682.
41 - The fact that the ICRC or another impartial humanitarian organization undertakes assistance activities and thereby replaces the authorities or supplements their efforts does not mean that it has a legal obligation to do so. This point is further demonstrated by the use of the words ‘may … undertake’ in Article 9. See also para. 1133 of this commentary. The ICRC Assistance Policy, adopted by the Assembly of the ICRC on 29 April 2004 and reproduced in International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 677–693, at 683, clarifies the circumstances in which the ICRC will agree to act as a substitute and provide services directly to the population.
42 - For further information, see ICRC, ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of other fundamental rules protecting persons in situations of violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 393–400.
43 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1215.
44 - ICRC Assistance Policy, adopted by the Assembly of the ICRC on 29 April 2004 and reproduced in International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 677–693, at 677.
45 - ICRC Assistance Policy, adopted by the Assembly of the ICRC on 29 April 2004 and reproduced in International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 677–693, at 678. For examples of specific activities covered by those terms, as undertaken by the ICRC, see ICRC, Health Activities: Caring for People Affected by Armed Conflict and Other Situations of Violence, ICRC, Geneva, 2015, and Economic Security, ICRC, Geneva, 2013.
46 - For the purposes of Additional Protocol I, see the definitions of ‘wounded’ and ‘sick’ in Article 8(a), of ‘medical personnel’ in Article 8(c) and of ‘religious personnel’ in Article 8(d).
47 - For further details on this link, see for example the commentaries on Article 19 (fixed establishments and mobile medical units), para. 1772, and on Article 35 (transports of wounded and sick or of medical equipment), para. 2363.
48 - Note that common Article 3(2) remains silent on this particular question, stating only that ‘[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict’. See also Article 81 of Additional Protocol I, which refers to the ‘victims of conflicts’ as the beneficiaries of humanitarian activities, as well as Article 5(2)(d) of the 1986 Statutes of the International Red Cross and Red Crescent Movement. For an illustration, see Guiding Principles on Internal Displacement (1998), Principle 25(2): ‘International humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced.’
49 - For the difference between the right to offer services and the provisions in which the role of the ICRC has been explicitly mentioned in connection with a specific activity, see para. 1132.
50 - With regard to the background and status of these Statutes, see para. 1124.
51 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(3). Other relevant provisions of these Statutes can be found in Article 5(2).
52 - See, however, the references to the 1949 Diplomatic Conference in para. 1131.
53 - For further information, see para. 1131.
54 - For an analysis of which activities qualify as ‘humanitarian activities’, see section C.2.
55 - Common Article 3(2) uses the wording ‘impartial humanitarian body’, which can be considered substantively identical to the term ‘impartial humanitarian organization’; see the commentary on that article, para. 788.
56 - See e.g. ICRC, Professional Standards for Protection Work Carried Out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence, 2nd edition, ICRC, Geneva, 2013. These standards, adopted through an ICRC-led consultation process, reflect shared thinking and common agreement among humanitarian and human rights agencies (UN agencies, components of the Movement, and non-governmental organizations). The ICRC is of the view that the standard of protection that an agency provides should not fall below those set out in this document.
57 - While the words ‘any other similar criteria’ do not appear in Article 9, they do in other provisions of the Geneva Conventions. See e.g. Article 12(2) of the First Convention.
58 - ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, para. 242. See also the Sphere Project’s Humanitarian Charter, para. 6, which states: [Humanitarian] assistance must be provided according to the principle of impartiality, which requires that it be provided solely on the basis of need and in proportion to need. This reflects the wider principle of non-discrimination; that no one should be discriminated against on any grounds of status, including age, gender, race, colour, ethnicity, sexual orientation, language, religion, disability, health status, political or other opinion, national or social origin.
59 - See also para. 1131 regarding the discussion which took place on this topic during the 1949 Diplomatic Conference.
60 - This requirement also appears in other treaty-based provisions dealing with the right to offer services; see the commentary on common Article 3, section J.6.a. See also Article 70(1) of Additional Protocol I and Article 18(2) of Additional Protocol II.
61 - Humanitarian activities in the context of an occupation are more tightly regulated than those in the context of an international armed conflict not amounting to an occupation. See Fourth Convention, Articles 55 and 59.
62 - Similarly, see Article 70(1) of Additional Protocol I, which has further clarified this by requiring only the ‘agreement of the Parties concerned in such relief actions’ when referring to relief action in an area under the control of a Party to the conflict.
63 - See, however, Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, pp. 36–38.
64 - For an interpretation of the term ‘neutral Powers’, see the commentary on Article 4, section C.1.
65 - See Fourth Convention, Article 23, and Additional Protocol I, Article 70(3). See also ICRC Study on Customary International Humanitarian Law (2005), Rules 55 and 56 (applicable in both international and non-international armed conflict).
66 - For a situation of occupation, Article 59(1) of the Fourth Convention provides for more stringent criteria. See also Article 69 of Additional Protocol I.
67 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 110–111: All these humanitarian activities are subject to one final condition – the consent of the Parties to the conflict concerned. This condition is obviously a harsh one. But one might almost say that it follows automatically. A belligerent Power can obviously not be obliged to tolerate in its territory activities of any kind by any foreign organization. That would be out of the question. The Powers do not have to give a reason for their refusals. The decision is entirely theirs. But being bound to apply the Convention, they alone must bear the responsibility if they refuse help in carrying out their engagements.
68 - The same evolution has taken place under customary international humanitarian law; see Henckaerts/Doswald-Beck, commentary on Rule 55 (dealing with humanitarian relief for civilians in need), pp. 196–197: ‘[A] humanitarian organization cannot operate without the consent of the party concerned. However, such consent must not be refused on arbitrary grounds.’ This statement in the customary law study is made in the context of a rule dealing with ‘humanitarian relief for civilians in need’. Logically, the same rule applies with regard to offers to protect or assist the wounded, sick or shipwrecked, as it does with regard to offers of services made to protect or assist prisoners of war. There is no reason why such offers of services should be regulated differently. Otherwise, this would lead to a manifestly absurd and unreasonable situation: a Party to the conflict would be prohibited from arbitrarily refusing an offer of services for civilians, but could do so when the offer of services was intended to benefit other categories of persons affected by the armed conflict. See also Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XII, p. 336, where the representative of the Federal Republic of Germany (endorsed on this point by several other delegates) stated with regard to the words ‘subject to the agreement of the Party to the conflict concerned in such relief actions’: ‘those words did not imply that the Parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions. A Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones.’ See also Guiding Principles on Internal Displacement (1998), Principle 25(2): ‘Consent [to an offer of services from an international humanitarian organization or other appropriate actor] shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance.’ For two recent examples, see: UN Security Council, Res. 2139 of 22 February 2014 concerning Syria, preambular para. 10: ‘condemning all cases of denial of humanitarian access, and recalling that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law’; and Res. 2216 of 14 April 2015 concerning Yemen, preambular para. 10, which contains identical wording as of ‘recalling’.
69 - ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared for the 31st International Conference of the Red Cross and Red Crescent, Geneva, 2011, p. 25.
70 - See also ICRC, Q&A and lexicon on humanitarian access, June 2014, p. 11.
71 - See Additional Protocol I, Article 54(1), and ICRC Study on Customary International Humanitarian Law (2005), Rule 53.
72 - ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, report prepared for the 31st International Conference of the Red Cross and Red Crescent, Geneva, 2011, p. 25.
73 - See ICC Statute (1998), Article 8(2)(b)(xxv).
74 - See Additional Protocol I, Article 70(3); see also Henckaerts/Doswald-Beck, commentary on Rule 55, p. 198.
75 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 56.
76 - As to international law, see in particular Article 71(4) of Additional Protocol I. As to national legislation, domestic regulations with regard to entry into national territory would need to be considered.