Practice Relating to Rule 55. Access for Humanitarian Relief to Civilians in Need
Section A. Access for humanitarian relief
South Africa’s LOAC Teaching Manual (2008) states:
2.3 Specifically Protected Persons and Objects …
a. Civilian Medical Services
Article 23 of [the 1949] Geneva Convention IV determines that the Parties to a conflict must allow the free passage through its territory, of all consignments of medical and hospital supplies as well as objects necessary for religious worship intended only for civilians, even though such consignments are destined for an adversary. The allowing of this free passage is subject to the condition that the Party to the conflict has no serious reasons for fearing:
- That the consignment may be diverted from their destination;
- That the control may not be effective; or
- That a definite advantage may accrue to the military efforts or the economy of the enemy through these goods.
The Parties to a conflict must, under certain conditions, allow the free passage through its territory, of all medical and hospital supplies and objects for religious worship intended only for civilians, even if it is destined for an adversary.
2.7 Special Protection: Occupied Territories
The Occupying Power has all the responsibilities of the legitimate State. Its responsibilities include to:
- Allow and ensure the proper functioning of the administration of the territory in the same way as it was before the occupation. ( Hague [Regulations] articles 43 and 48 and Geneva Convention [IV] articles 51, 54 and 56.) This includes:
- Accept relief actions (such as the provisioning of foodstuffs, clothes, medical and hospital stores and objects necessary for religious worship intended only for civilians) from abroad undertaken for the benefit of the civilian population and facilitate its execution with all the means at its disposal. (Geneva Convention IV Articles 23, 59 to 61 and 63 and  Additional Protocol I Articles 70 and 81)
The manual also states:
4.1 LOAC [law of armed conflict] in Naval Warfare
- The declaration or establishment of a blockade is prohibited if it has the sole purpose of starving the civilian population or denying it other objects essential for its survival or the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.
- If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to the right to prescribe the technical arrangements, including search, under which such passage is permitted and the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organisation which offers guarantees of impartiality, such as the International Committee of the Red Cross.
- The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.
South Africa’s ICC Act (2002) reproduces the crimes against humanity listed in the 1998 ICC Statute, including “extermination”, which is defined as including “the intentional infliction of conditions of life, inter alia
the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”.
South Africa’s Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (2006) states:
Definitions and interpretation
1. (1) In this Act, unless the context indicates otherwise –
“armed conflict” includes any –
(a) situation in a regulated country proclaimed as such in terms of section 6;
(b) armed conflict in any other country which has not been so proclaimed, between–
(i) the armed forces of such country and dissident or rebel armed forces or other armed groups;
(ii) the armed forces of any states;
(iii) armed groups;
(iv) armed forces of any occupying power and dissident or rebel armed forces or any other armed group; or
(v) any other combination of the entities referred to in subparagraphs (i) to (iv);
“Committee” means the National Conventional Arms Control Committee, established in terms of section 2 of the National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);
Prohibition and regulation of humanitarian assistance in country of armed conflict
5. (1) No South African humanitarian organisation may provide humanitarian assistance in a country where there is an armed conflict or a regulated country, unless such organisation has been registered with the Committee for that purpose.
(2) An organisation referred to in subsection (1) must submit to the Committee an application for registration in the prescribed form and manner.
Proclamation of regulated country
6. (1) The Committee must inform the National Executive, whenever it is of the opinion that–
(a) an armed conflict exists or is imminent in any country; and
(b) such a country should be proclaimed to be a regulated country.
Criteria for authorisation or exemption
9. An authorisation in terms of section 7(2), and exemption in terms of section 13, may be given, unless it –
(a) is in conflict with the Republic’s obligations in terms of international law;
(b) would result in the infringement of human rights and fundamental freedoms in the territory where the assistance or service is to be rendered or the exemption granted;
(c) endangers the peace by introducing destabilising military capabilities into the region or territory where the assistance or service, or humanitarian aid, is or is likely to be, provided or rendered;
(d) would contribute to regional instability or negatively influence the balance of power in such region or territory;
(e) in any manner supports or encourages any terrorist activity or terrorist and related activities, as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);
(f) contributes to the escalation of regional conflicts;
(g) in any manner initiates, causes or furthers an armed conflict, or a coup d’état, uprising or rebellion against a government; or
(h) prejudices the Republic’s national or international interests.
13. The President as Head of the National Executive may, subject to section 9, upon request in the prescribed form and manner, exempt any humanitarian aid organisation from the provisions of section 5 of this Act, if such exemption would facilitate the rendering of humanitarian aid, without delay, in order to relieve the plight of civilians in an armed conflict, and subject to such conditions as he or she may determine.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2010, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the Minister of International Relations and Cooperation of South Africa stated: “The issue of humanitarian access will require further attention so as to find ways to ensure that those in need of life-saving assistance receive it and that those who provide it do so in a secure environment in which attacks on humanitarian workers are not tolerated.”
In 2011, in an opening statement at the Eleventh Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, the Deputy Minister of International Relations and Cooperation of South Africa stated:
[W]ithin the debate of the protection of civilians, it remains vital to reflect on the necessity to allow safe and unimpeded access to the vulnerable communities. Just in the past few months we have again seen that if aid organisations are not allowed access to affected communities, those communities are not only traumatised, but are placed in desperate positions, with their basic rights of access to food and water being denied. Providing essential services on the respected humanitarian principles of neutrality, impartially and humanity remains critical when addressing the protection needs of civilians.
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the deputy permanent representative of Chile stated:
Despite the unrelenting efforts of the international community, civilians continue to account for the majority of casualties in armed conflicts. …
Full and unimpeded access of humanitarian assistance continues to be a sine qua non
requirement for the relief of affected populations, including in particular the most vulnerable groups, such as women and children.
South Africa remains gravely concerned about the devastating humanitarian crisis in Yemen. It took note of the report by the United Nations Humanitarian Office (OCHA) on 7 November 2017 and urges all parties to allow unhindered distribution of humanitarian supplies to all affected civilians in Yemen and comply with their obligations under international law, including international humanitarian law and international human rights law as applicable.