Section C. Access for humanitarian relief via third States
Additional Protocol I
Article 70(2) of the 1977 Additional Protocol I provides:
The Parties to the conflict and each High Contracting Party
shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party”.
Additional Protocol II (draft)
Article 33(2) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided:
The parties to the conflict and any High Contracting Party
through whose territory supplies must pass shall grant free passage when relief actions are carried out in accordance with the conditions stated in paragraph 1.
This proposal was amended and adopted by consensus in Committee II of the CDDH.
The approved text provided:
The Parties to the conflict and each High Contracting Party
through whose territory these relief supplies will pass shall facilitate rapid and unimpeded passage of all relief consignments provided in accordance with the conditions stated in paragraph 2.
Eventually, however, this paragraph was not included in the final draft article that was voted upon in the plenary session.
The Military Manual (2005) of the Netherlands states:
A neutral State may allow the passage of … relief goods belonging to parties to the conflict (HC [1907 Hague Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land] Article 14). It should ensure that no battle units or military equipment are included.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
If the whole or part of the population of occupied territory suffers from shortage of supplies, the Occupant must agree to relief schemes being instituted on their behalf and must facilitate such schemes by all the means at his disposal. The schemes in question will consist in particular of the provision of the consignments of foodstuffs, medical supplies and clothing … All parties to [the 1949 Geneva Convention IV] must permit the free passage of such consignments and must guarantee their protection.
United States of America
The US Field Manual (1956) provides:
If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.
Such schemes, which may be undertaken … by States shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 70(2), is a punishable offence.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
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
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Commons asking “what plans [were] in place to ensure early access for UN agencies and international aid agencies into Basra”, the UK Secretary of State for International Development wrote:
Most humanitarian agencies require a permissive security environment before they can operate in Iraq. The Office of the UN Security Co-ordinator (UNSECOORD) provides security advice to the UN humanitarian agencies. Security updates are also being provided through the Humanitarian Operations Centre in Kuwait. NGOs are being issued passes to cross the Kuwait/Iraq border by the Humanitarian Operations Centre in Kuwait. Once the situation allows, NGOs will need to undertake their own security assessments before engaging.
UN Security Council
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 with the United Nations Humanitarian Coordinator and United Nations agencies in providing … access” of humanitarian personnel.
UN Security Council
In a resolution adopted in 2007 on Somalia, the UN Security Council “urges
the countries in the region to facilitate the provision of humanitarian assistance by land or via air and sea ports.”
UN Security Council
In 1994, in a statement by its President on the situation in Rwanda, the UN Security Council stated:
The Security Council calls on all States to assist the Office of the United Nations High Commissioner for Refugees (UNHCR) and other humanitarian and relief agencies operating in the area in meeting the urgent humanitarian needs in Rwanda and its bordering States. The Council calls on States bordering Rwanda … to facilitate transfer of goods and supplies to meet the needs of the displaced persons within Rwanda.
UN Security Council
In 2007, in a statement by its President concerning the situation in Somalia, the UN Security Council stated:
The Council … urges the wider region to help facilitate the cross-border provision of aid to Somalia, across land borders or via air- and sea-ports.
UN Security Council
In 2007, in a statement by its President concerning Somalia, the UN Security Council stated:
The Security Council emphasizes again the need for strengthened efforts to provide humanitarian relief assistance to Somalia, including assistance to the hundreds of thousands of displaced persons, urges Member States to support generously such operations, and demands that all parties ensure unfettered access for humanitarian assistance.
UN General Assembly
In 1991, the UN General Assembly adopted a resolution on the strengthening of the coordination of humanitarian emergency assistance of the United Nations. The guiding principles on humanitarian assistance annexed to the resolution emphasize, inter alia
, 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.”
UN General Assembly
In a resolution adopted in 2004 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
that States whose populations are in need of humanitarian assistance are called upon to facilitate the work of humanitarian organizations and that States in proximity to humanitarian emergencies are urged to facilitate, to the extent possible, the transit of humanitarian assistance.
UN Sub-Commission on Human Rights
In a decision adopted in 1996 on the humanitarian situation in Iraq, the UN Sub-Commission on Human Rights appealed to the “international community as a whole and to all Governments, including that of Iraq, to facilitate the supply of food and medicine to the civilian population”.
In 1999, in a report on the protection of civilians in armed conflict, the UN Secretary-General urged “neighbouring Member States to ensure access for humanitarian assistance”.
UN Office for the Coordination of Humanitarian Affairs
The Code of Conduct for Humanitarian Assistance in Sierra Leone, issued by the UN Office for the Coordination of Humanitarian Affairs and annexed to the 1999 United Nations Inter-Agency Consolidated Appeal for Sierra Leone, contains certain guiding principles for States and non-State entities. One of these principles provides:
States in proximity to emergencies are urged to participate closely with affected countries in international efforts with a view to facilitating, to the extent possible, the transit of humanitarian assistance and humanitarian personnel.
In a declaration on Yugoslavia in 1992, the EC called upon all parties to the conflict and other States “to facilitate the provision of humanitarian assistance … including through the establishment of humanitarian corridors”.
OAU Assembly of Heads of State and Government
In a resolution adopted in 1993 on the situation in Angola, the OAU Assembly of Heads of State and Government called on “the OAU Member States and the international community to provide urgent humanitarian aid in order to mitigate the sufferings of the people in this country”.
Council of Delegates (1991)
At its Budapest Session in 1991, the Council of Delegates adopted a resolution on humanitarian assistance in situations of armed conflict, in which it called upon all parties to armed conflicts and, where applicable, any High Contracting Party “to agree to and cooperate in relief actions which are exclusively humanitarian, impartial and non-discriminatory in character, within the meaning of the Fundamental Principles of the International Red Cross and Red Crescent Movement”.
Institute of International Law
In a resolution adopted at its Wiesbaden Session in 1975, the Institute of International Law stated:
In cases where the territory controlled by one party can be reached only by crossing … the territory of a third State, free passage over such territory should be granted to any relief consignment, at least insofar as is provided for in Article 23 [of the 1949 Geneva Convention IV].