Rule 55. Access for Humanitarian Relief to Civilians in Need
Rule 55. The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.
Volume II, Chapter 17, Section C.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The Fourth Geneva Convention requires States to “allow the free passage of all consignments of medical and hospital stores” intended only for civilians and “the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases”.[1] Additional Protocol I broadens this obligation to cover “rapid and unimpeded passage of all relief consignments, equipment and personnel”.[2] This broadening is generally accepted, including by States not, or not at the time, party to Additional Protocol I.[3]
Many military manuals contain the obligation to allow and facilitate access of humanitarian relief to civilians in need.[4] The obligation to allow and facilitate access of humanitarian relief to civilians in need is also supported by official statements and reported practice.[5] The United Nations, in particular, has on many occasions called for respect for the rule. The UN Security Council, for example, has called for unimpeded access for humanitarian relief efforts in Iraq and in all areas affected by the conflict between Armenia and Azerbaijan.[6]
The requirement to allow and facilitate access for humanitarian relief to civilians in need was included in the draft of Additional Protocol II adopted by Committee II of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment as part of a package aimed at the adoption of a simplified text.[7] As a result, Additional Protocol II requires that relief actions for the civilian population in need be organized but does not contain a specific provision on access of humanitarian relief even though such access is clearly a conditio sine qua non for relief actions.[8] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[9]
The obligation to allow the free passage of relief supplies is also set forth in military manuals which are applicable in non-international armed conflicts.[10] The obligation to allow the free passage of relief supplies is also supported by many official statements and other practice relating to non-international armed conflicts.[11]
It is also relevant that under the Statute of the International Criminal Court, extermination, 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”, constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.[12] The legislation of numerous States provides for the crime of extermination.[13]
Contrary practice has generally been condemned with respect to both international and non-international armed conflicts. For example, the Mengistu regime in Ethiopia reportedly used the denial of access to food as a weapon against armed opposition groups, including by banning the movement of relief supplies after a famine emerged in late 1989. It is reported, however, that “after an international outcry against his policy, Mengistu reversed his decision”.[14] The United Nations in particular has called for respect for this rule. The UN Security Council, for example, has called on the parties to numerous conflicts, such as those in Afghanistan, Angola, between Armenia and Azerbaijan, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Georgia, Kosovo, Liberia, Somalia and Yemen, to provide unimpeded access for humanitarian assistance.[15] In a resolution adopted in 1999 on children in armed conflicts, the UN Security Council called on all parties to armed conflicts “to ensure the full, safe and unhindered access of humanitarian personnel and the delivery of humanitarian assistance to all children affected by armed conflicts”.[16] In another resolution adopted in 1999 on protection of civilians in armed conflicts, the UN Security Council expressed its concern at “the denial of safe and unimpeded access to people in need” and underlined “the importance of safe and unhindered access of humanitarian personnel to civilians in armed conflicts”.[17] These statements were repeated in resolutions adopted in 2000.[18]
The 26th International Conference of the Red Cross and Red Crescent in 1995 emphasized “the importance for humanitarian organizations to have unimpeded access in times of armed conflict to civilian populations in need, in accordance with the applicable rules of international humanitarian law”.[19] The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all the parties to an armed conflict ensure that “rapid and unimpeded access to the civilian population is given to impartial humanitarian organizations in accordance with international humanitarian law in order that they can provide assistance and protection to the population”.[20] The ICRC has called on parties to both international and non-international armed conflicts to respect this rule.[21]
Both Additional Protocols I and II require the consent of the parties concerned for relief actions to take place.[22] Most of the practice collected does not mention this requirement. It is nonetheless self-evident that a humanitarian organization cannot operate without the consent of the party concerned. However, such consent must not be refused on arbitrary grounds. If it is established that a civilian population is threatened with starvation and a humanitarian organization which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent.[23] The 26th International Conference of the Red Cross and Red Crescent in 1995 stressed the obligation of all parties to a conflict “to accept, under the conditions prescribed by international humanitarian law, impartial humanitarian relief operations for the civilian population when it lacks supplies essential to its survival”.[24] While consent may not be withheld for arbitrary reasons, practice recognizes that the party concerned may exercise control over the relief action.[25] In addition, humanitarian relief personnel must respect domestic law on access to territory and must respect the security requirements in force.[26]
Practice further indicates that a party that imposes a siege, blockade or embargo which has the effect of starving the civilian population has an obligation to provide access for humanitarian aid for the civilian population in need (see commentary to Rule 53).
With respect to occupied territories, the Fourth Geneva Convention imposes an obligation on the occupying power to ensure food and medical supplies for the population.[27] It would make sense, although practice does not yet clarify this, to require all parties to a conflict to ensure their populations have access to the basic necessities, and if sufficient supplies are unavailable, to appeal for international assistance and not wait until such assistance is offered.
Practice indicates that each party to the conflict must refrain from deliberately impeding the delivery of relief supplies to civilians in need in areas under its control. Under the Statute of the International Criminal Court, “wilfully impeding relief supplies” as part of the use of starvation of civilians as a method of warfare is a war crime in international armed conflicts.[28] Such impediment is also an offence under the legislation of numerous States,[29] some of which applies to both international and non-international armed conflicts.[30]
The impediment of relief actions in Bosnia and Herzegovina was widely condemned.[31] Numerous resolutions of the UN Security Council, UN General Assembly and UN Commission on Human Rights condemn such impediment.[32] Some of these resolutions are explicitly addressed to governmental armed forces, while others are explicitly addressed to armed opposition groups.
While some resolutions do not qualify the prohibition on impeding humanitarian relief, others only prohibit the “deliberate” or “wilful” impediment. Both treaty law and practice indicate that the parties to the conflict can take a number of measures to control the content and delivery of humanitarian aid but cannot “deliberately” impede its delivery as such. Such measures of control may include the search of relief consignments and their delivery under supervision.[33]
Additional Protocol I requires unimpeded passage of humanitarian relief, not only by the parties to the conflict but by each State party to the Protocol.[34] Such a provision was also included in the draft of Additional Protocol II by Committee II at the Diplomatic Conference leading to the adoption of the Additional Protocols, but it was deleted at the last moment as part of a package aimed at the adoption of a simplified text.[35] In a resolution adopted in 2000 on protection of civilians in armed conflicts, the UN Security Council called upon “all parties concerned, including neighbouring states, to cooperate fully” in providing access for humanitarian personnel.[36] Earlier, in 1994, the Security Council had called upon “States bordering Rwanda … to facilitate transfer of goods and supplies to meet the needs of the displaced persons within Rwanda”.[37] The Guiding Principles on Humanitarian Assistance adopted by the UN General Assembly in 1991 emphasize that “States in proximity to emergencies are urged to participate closely with the affected countries in international efforts, with a view to facilitating, to the extent possible, the transit of humanitarian assistance”.[38]
There is practice which recognizes that a civilian population in need is entitled to receive humanitarian relief essential to its survival, in accordance with international humanitarian law. The Fourth Geneva Convention recognizes the right of protected persons to make application to the protecting powers, the ICRC or a National Red Cross or Red Crescent Society, as well as to any organization that might assist them.[39] The Additional Protocols implicitly recognize the entitlement of a civilian population in need to receive humanitarian relief as they require that relief actions “shall be undertaken” whenever a population is in need.[40]
Other State practice explicitly recognizes this right. Nicaragua’s Military Manual, for example, states that “the civilian population has the right to receive the relief they need”.[41] This right is also recognized in practice pertaining to non-international armed conflicts.[42]
The UN Security Council, UN General Assembly and UN Commission on Human Rights have on several occasions underlined the obligation to grant civilians access to relief supplies.[43] In a report on emergency assistance to Sudan in 1996, the UN Secretary-General stated that:
Any attempt to diminish the capacity of the international community to respond to conditions of suffering and hardship among the civilian population in the Sudan can only give rise to the most adamant expressions of concern as a violation of recognized humanitarian principles, most importantly, the right of civilian populations to receive humanitarian assistance in times of war.[44]
The 26th International Conference of the Red Cross and Red Crescent in 1995 reasserted “the right of a civilian population in need to benefit from impartial humanitarian relief actions in accordance with international humanitarian law”.[45] In a communication to the press in 1997 concerning the conflict in Zaire, the ICRC appealed to all concerned to “respect the victims’ right to assistance and protection”.[46]
[1] Fourth Geneva Convention, Article 23 (cited in Vol. II, Ch. 17, § 361).
[2] Additional Protocol I, Article 70(2) (adopted by consensus) (ibid., § 362).
[3] See, e.g., the military manual of Kenya (ibid., § 388) and the statement of the United States (ibid., § 435).
[4] See, e.g., the military manuals of Argentina (“allow”) (ibid., §§ 380–381), Australia (“allow”) (ibid., § 383), Canada (“allow” and “facilitate” in case of siege warfare) (ibid., § 384), Colombia (“allow”) (ibid., § 385), Germany (“permit”) (ibid., § 386), Italy (“accept”) (ibid., § 387), Kenya (“allow and facilitate”) (ibid., § 388), Netherlands (“have to give” and “facilitate”) (ibid., § 389), New Zealand (“allow”) (ibid., § 390), Russian Federation (“give all facilities”) (ibid., § 391), Switzerland (“all necessary facilities”) (ibid., § 393), United Kingdom (“allow”, “all necessary facilities” and “guarantee”) (ibid., §§ 394–395) and United States (“agree” and “facilitate”) (ibid., § 396).
[5] See, e.g., the statements of Norway (ibid., § 430) and United States (ibid., § 435) and the reported practice of Kuwait (ibid., § 426).
[6] UN Security Council, Res. 688 (ibid., § 440), Res. 706 (ibid., § 441), Res. 822 (ibid., § 445), Res. 853 (ibid., § 448) and Res. 874 (ibid., § 449).
[7] Draft Additional Protocol II, Article 33 (ibid., § 363).
[8] Additional Protocol II, Article 18(2) (adopted by consensus) (ibid., § 680).
[9] See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 9 (ibid., § 368); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.6 (ibid., § 369); Bahir Dar Agreement, § 2 (ibid., § 370); Agreement on a Cease-fire in the Republic of Yemen, § 3 (ibid., § 373); Guiding Principles on Internal Displacement, Principle 25 (ibid., § 375); UN Secretary-General’s Bulletin, Section 9.9 (ibid., § 376); Agreement on the Protection and Provision of Humanitarian Assistance in Sudan, § 1(ibid., § 377).
[10] See, e.g., the military manuals of Colombia (ibid., § 385), Germany (ibid., § 386), Italy (ibid., § 387) and Kenya (ibid., § 388).
[11] See, e.g., the statements of Germany (ibid., § 423), Nigeria (ibid., § 429), United States (ibid., § 434) and Yugoslavia (ibid., § 437), the practice of Jordan (ibid., § 425), Philippines (ibid., §§ 431–432) and Yugoslavia (ibid., § 438) and the reported practice of Rwanda (ibid., § 433).
[12] ICC Statute, Article 7 (ibid., § 365).
[13] See, e.g., the legislation of Australia (ibid., § 397), Azerbaijan (ibid., § 398), Belgium (ibid., § 400), Cambodia (ibid., § 402), Canada (ibid., § 403), Congo (ibid., § 404), Germany (ibid., § 407), Israel (ibid., § 409), Mali (ibid., § 410), New Zealand (ibid., § 411), United Kingdom (ibid., § 415), United States (ibid., §§ 416–417) and Viet Nam (ibid., § 418); see also the draft legislation of Burundi (ibid., § 401) and Trinidad and Tobago (ibid., § 414).
[14] See Thomas P. Ofcansky and LaVerle Berry (eds.), Ethiopia: A Country Study (ibid., § 422).
[15] UN Security Council, Res. 752 (ibid., § 442), Res. 757 (ibid., § 443), Res. 794 (ibid., § 444), Res. 822 (ibid., § 445), Res. 824 (ibid., § 446), Res. 851 (ibid., § 447), Res. 853 (ibid., § 448), Res. 874 (ibid., § 449), Res. 876 (ibid., § 450), Res. 908 (ibid., § 451), Res. 931 (ibid., § 452), Res. 998 (ibid., § 453), Res. 1004 (ibid., § 454), Res. 1019 (ibid., § 456), Res. 1059 and 1071 (ibid., § 457), Res. 1083 (ibid., § 459), Res. 1160 (ibid., § 460), Res. 1199 (ibid., § 461), Res. 1213 (ibid., § 462), Res. 1239 (ibid., § 463), Res. 1291 (ibid., § 468), Res. 1333 (ibid., § 471) and Statements by the President (ibid., §§ 472–479 and 483).
[16] UN Security Council, Res. 1261 (ibid., § 464).
[17] UN Security Council, Res. 1265 (ibid., § 466).
[18] UN Security Council, Res. 1296 (ibid., § 469) and Res. 1314 (ibid., § 470).
[19] 26th International Conference of the Red Cross and Red Crescent, Res. II (ibid., § 533).
[20] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 536).
[21] See, e.g., ICRC, Conflict in Southern Africa: ICRC appeal (ibid., § 540), Press Release No. 1488 (ibid., § 541), Annual Report 1986 (ibid., § 542), Press Release, ICRC denies allegations (ibid., § 545), Press Release, Tajikistan: ICRC urges respect for humanitarian rules (ibid., § 546), Press Release No. 1744 (ibid., § 547), Press Release, ICRC Appeal for respect for international humanitarian law in central Bosnia (ibid., § 548), Communication to the Press No. 93/17 (ibid., § 549), Communication to the Press No. 93/22 (ibid., § 550), Memorandum on Respect for International Humanitarian Law in Angola (ibid., § 553), Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise (ibid., § 554), Communication to the Press No. 97/08 (ibid., § 556) and Communication to the Press No. 01/47 (ibid., § 557).
[22] Additional Protocol I, Article 70(1) (adopted by consensus) (ibid., § 679); Additional Protocol II, Article 18(2) (adopted by consensus) (ibid., § 680).
[23] See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols (ibid., § 539); see also § 2805 of the Commentary.
[24] 26th International Conference of the Red Cross and Red Crescent, Res. II (cited in Vol. II, Ch. 17, § 533).
[25] See, e.g., Fourth Geneva Convention, Article 23 (ibid., § 361); Additional Protocol I, Article 70(3) (adopted by consensus) (ibid., § 362); the military manuals of Argentina (ibid., § 380), Australia (ibid., § 383), Canada (ibid., § 384), Germany (ibid., § 386), Kenya (ibid., § 388), Netherlands (ibid., § 389), New Zealand (ibid., § 390), United Kingdom (ibid., § 394) and United States (ibid., § 396).
[26] Additional Protocol I, Article 71(4) (adopted by consensus) (ibid., § 725).
[27] Fourth Geneva Convention, Article 55.
[28] ICC Statute, Article 8(2)(b)(xxv) (cited in Vol. II, Ch. 17, § 564).
[29] See, e.g., the legislation of Australia (ibid., § 569), Canada (ibid., § 572), Colombia (ibid., § 573), Congo (ibid., § 574), Georgia (ibid., § 576), Germany (ibid., § 577), Ireland (ibid., § 578), Mali (ibid., § 579), Netherlands (ibid., § 580), New Zealand (ibid., § 581), Norway (ibid., § 583), Philippines (ibid., § 584) and United Kingdom (ibid., § 586); see also the draft legislation of Burundi (ibid., § 571), El Salvador (ibid., § 575), Nicaragua (ibid., § 582) and Trinidad and Tobago (ibid., § 585).
[30] See, e.g., the legislation of Colombia (ibid., § 573) and Germany (ibid., § 577); see also the draft legislation of El Salvador (ibid., § 575) and Nicaragua (ibid., § 582).
[31] See the statements of China (ibid., § 589), Egypt (ibid., § 590), Islamic Republic of Iran (ibid., § 590), Pakistan (ibid., § 590), Saudi Arabia (ibid., § 590), Senegal (ibid., § 590), Turkey (ibid., § 590) and United Kingdom (ibid., § 593); see also the statements of Germany vis-à-vis Sudan and Afghanistan (ibid., §§ 591–592).
[32] See, e.g., UN Security Council, Res. 758 (ibid., § 594), Res. 761 (ibid., § 595), Res. 770 (ibid., § 596), Res. 771 (ibid., § 597), Res. 787 (ibid., § 598), Res. 794 (ibid., § 599), Res. 836 (ibid., § 600), Res. 945 and 952 (ibid., § 601), Res. 998 (ibid., § 602), Res. 1132 (ibid., § 603) and Res. 1193 (ibid., § 604); UN General Assembly, Res. 46/242 (ibid., § 622), Res. 49/196 and 50/193 (ibid., § 623), Res. 52/140 (ibid., § 624) and Res. 52/145 (ibid., § 625); UN Commission on Human Rights, Res. 1983/29 (ibid., § 626), Res. 1994/72 (ibid., § 627), Res. 1994/75 (ibid., § 628), Res. 1995/77 (ibid., § 629), Res. 1995/89 (ibid., § 630), Res. 1996/73 (ibid., § 631) and Res. 1998/67 (ibid., § 632).
[33] See Additional Protocol I, Article 70(3) (adopted by consensus) (ibid., § 362).
[34] Additional Protocol I, Article 70(2) (adopted by consensus) (ibid., § 656).
[35] Draft Additional Protocol II, Article 33(2) (ibid., § 657).
[36] UN Security Council, Res. 1296 (ibid., § 666).
[37] UN Security Council, Statement by the President (ibid., § 667).
[38] UN General Assembly, Res. 46/182 (ibid., § 668).
[39] Fourth Geneva Convention, Article 30, first paragraph (ibid., § 678).
[40] Additional Protocol I, Article 70(1) (adopted by consensus) (ibid., § 679); Additional Protocol II, Article 18(2) (adopted by consensus) (ibid., § 680).
[41] Nicaragua, Military Manual (ibid., § 687).
[42] See, e.g., the practice of Colombia (ibid., § 696).
[43] See, e.g., UN Security Council, Res. 824 (ibid., § 701); UN General Assembly, Res. 55/2 (ibid., § 704); UN Commission on Human Rights, Res. 1995/77 (ibid., § 705).
[44] UN Secretary-General, Report on emergency assistance to Sudan (ibid., § 706); see also Report on protection for humanitarian assistance to refugees and others in conflict situations (ibid., § 707) and Reports on the protection of civilians in armed conflict (ibid., §§ 708–709).
[45] 26th International Conference of the Red Cross and Red Crescent, Res. II (ibid., § 713).
[46] ICRC, Communication to the Press No. 97/08 (ibid., § 721).
