Rule 56. The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The obligation to ensure freedom of movement is a corollary to the obligation to provide access to civilians in need and the prohibition on deliberately impeding the delivery of humanitarian assistance (see Rule 55).
The obligation to accord freedom of movement to authorized humanitarian personnel is set forth in Additional Protocol I.[1] Additional Protocol II requires that relief actions for the civilian population in need be organized, but does not contain a specific provision on the freedom of movement of humanitarian aid personnel, which is essential to the provision of humanitarian aid.[2]
Amended Protocol II to the Convention on Certain Conventional Weapons implements the freedom of movement, as well as the need for rapid and unimpeded passage, of humanitarian relief personnel by imposing a duty on each party to a conflict to take “such measures as are necessary to protect the force or mission from the effects of mines, booby-traps and other devices in any area under its control”. It provides, in particular, that each high contracting party or party to a conflict shall:
if access to or through any place under its control is necessary for the performance of the mission’s functions and in order to provide the personnel of the mission with safe passage to or through that place:
(aa) unless on-going hostilities prevent, inform the head of the mission of a safe route to that place if such information is available; or
(bb) if information identifying a safe route is not provided in accordance with subparagraph (aa), so far as is necessary and feasible, clear a lane through minefields.[3]
The need for humanitarian relief personnel to enjoy freedom of movement essential for the exercise of their functions has been claimed in practice with respect to both international and non-international armed conflicts. Violations of this rule have been condemned, regardless of whether the conflict was international or non-international. The United Nations, in particular, has issued numerous statements and adopted numerous resolutions in this respect, many of them with regard to non-international armed conflicts. The UN Security Council, for example, has called upon all parties to the conflicts in Afghanistan, Angola, Bosnia and Herzegovina, Georgia, Liberia, Somalia, Tajikistan and the Great Lakes region to ensure the freedom of movement of humanitarian relief personnel.[4] In a resolution adopted in 1999 on protection of civilians in armed conflicts, the Security Council emphasized “the need for combatants to ensure the … freedom of movement of … personnel of international humanitarian organizations”.[5] In a resolution on the same subject adopted in 2000, the Security Council reiterated “its call to all parties concerned, including non-State parties, to ensure the … freedom of movement of … personnel of humanitarian organizations”.[6]
The ICRC has called upon parties to both international and non-international armed conflicts to respect this rule.[7]
No official contrary practice was found.
Most practice does not mention the requirement that the rule concern authorized humanitarian personnel, but it is self-evident that a party to the conflict cannot be required to ensure the freedom of movement of an organization it has not authorized. It must be stressed, however, that such authorization cannot be refused arbitrarily (see commentary to Rule 55). In addition, the right of each party to the conflict to make sure that the personnel concerned are actually involved in humanitarian aid work is recognized in practice.[8] Pursuant to the Third and Fourth Geneva Conventions, "the special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times".[9]
Additional Protocol I provides that “only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted”.[10] The exception of imperative military necessity is justified on the basis that relief operations must not be allowed to interfere with military operations, lest the safety of humanitarian relief personnel be endangered. These restrictions can only be limited and temporary, however. In no case may they involve violations of the preceding rules (see Rules 53–55).
[1] Additional Protocol I, Article 71(3) (adopted by consensus) (cited in Vol. II, Ch. 17, § 725).
[2] Additional Protocol II, Article 18(2) (adopted by consensus) (ibid., § 680).
[3] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 12 (cited in Vol. II, Ch. 29, § 352).
[4] UN Security Council, Res. 746 (cited in Vol. II, Ch. 17, § 734), Res. 751 (ibid., § 735), Res. 819 (ibid., § 736), Res. 998 (ibid., § 737), Res. 1075 (ibid., § 738), Res. 1078 (ibid., § 739), Res. 1080 (ibid., § 740), Res. 1083 (ibid., § 741), Res. 1088 (ibid., § 742), Res. 1173 and 1180 (ibid., § 743), Res. 1193 (ibid., § 744), Res. 1202 (ibid., § 745), Res. 1213 (ibid., § 746), Res. 1333 (ibid., § 750) and Statements by the President (ibid., §§ 752–762).
[5] UN Security Council, Res. 1265 (ibid., § 748).
[6] UN Security Council, Res. 1296 (ibid., § 749).
[7] See, e.g., ICRC, Conflict in Southern Africa: ICRC appeal (ibid., § 772), Appeal in behalf of the civilians in Yugoslavia (ibid., § 773), Press Release No. 1705 (ibid., § 774), Press Release No. 1712 (ibid., § 775), Press Release No. 1726 (ibid., § 775), Memorandum on Respect for International Humanitarian Law in Angola (ibid., § 776) and Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise (ibid., § 777).
[8] See also Additional Protocol I, Article 71(4) (adopted by consensus) (ibid., § 725).
[9] Third Geneva Convention, Article 125, third paragraph; Fourth Geneva Convention, Article 142, third paragraph.
[10] Additional Protocol I, Article 71(3) (adopted by consensus) (ibid., § 725).