Status of NGOs in International Humanitarian Law [1 ed.] 9789004269668, 9789004269675

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Status of NGOs in International Humanitarian Law

Graduate Institute of International and Development Studies VOLUME 14

The titles published in this series are listed at brill.com/giis

Status of NGOs in International Humanitarian Law By

Claudie Barrat Foreword by

Georges Abi-Saab

LEIDEN | BOSTON

Cover illustration: (Film) AFP photo/Musa AL-SHAFER. Library of Congress Cataloging-in-Publication Data Barrat, Claudie, author.  Status of NGOs in international humanitarian law / By Claudie Barrat.   p. cm. — (Graduate Institute of International and Development studies ; volume 14)  Includes bibliographical references and index.  ISBN 978-90-04-26967-5 (hardback : alk. paper) — ISBN 978-90-04-26966-8 (e-book) 1. Non-governmental organizations—Law and legislation. 2. Humanitarian law. I. Title. II. Title: Status of non-governmental organizations in international humanitarian law.  KZ4850.B36 2014  341.6’7—dc23

2014019816

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1572-5618 isbn 978-90-04-26967-5 (hardback) isbn 978-90-04-26966-8 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. The views expressed in this publication are those of the author and do not necessarily reflect those of the United Nations. This book is printed on acid-free paper.

Contents Foreword  vii Georges Abi-Saab Acknowledgments  x List of Abbreviations  xii Introduction  1 1 Concepts: NGOs, Armed Conflicts and Customary Law  10 1 What is an NGO?  10 2 Applicable Law in Times of Armed Conflicts  17 3 International and Non-International Armed Conflicts  20 4 Customary International Law and General Principles  31 2 The Red Cross and Red Crescent Movement: A Position Affirmed in International Humanitarian Law Treaties  60 1 The ICRC  61 2 The Federation of Red Cross and Red Crescent Societies  70 3 The National Societies of the Red Cross and Red Crescent  74 3 The Reference to 13 Other Organisations in IHL Treaties: A Basis for NGOs  86 1 Volunteer/Voluntary Aid Societies  87 2 Civil Defence Organisations  96 3 Civilian Relief/Medical Personnel  106 4 The Civilian Religious Personnel  117 5 Substitutes of the Protecting Powers  125 6 Impartial Humanitarian Bodies/Organisations  138 7 Organisations Giving Assistance to Prisoners of Wars  158 8 Relief Societies  165 9 International Religious Organisations  172 10 Organisations Duly Approved by the Parties to the Conflict  175 11 Social or Cooperative Organisations  177 12 Organisations Engaged in the Task of Reuniting Families  177 13 Organisations Assisting the Protected Persons  179

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4 The Legal Personality of NGOs in International Humanitarian Law: Is That the Question?  181 1 Recognition of Existing NGOs as Organisations Cited in IHL Treaties  182 2 International Legal Personality and Its Applicability to NGOs  192 3 The Carrots: Can NGOs Benefit from Direct Rights in International Humanitarian Law?  215 4 The Sticks: With Power Comes Responsibility  229 5 Customary Rights of NGOs in International Humanitarian Law  245 1 A Customary Right to Offer Services (“Right of Initiative”)  246 2 A Customary Right to Have Access to Protected Persons  253 3 A Customary Right to Provide Relief to Protected Persons  262 4 A General Customary Right to be Respected and Protected  300 Conclusion  337  Selected Bibliography  347 1 Primary Sources  347 1.1 Treaties  347 1.2 Declarations and Resolutions  348 1.3 Workshops and Conferences Documents  349 1.4 Draft Conventions  351 1.5 Other Documents  352 2 Secondary Sources  352 2.1 Books  352 2.2 Articles and Contributions to Collective Works  358  Index  380

Foreword The present study of Claudie Barrat deals with a highly topical phenomenon, namely the proliferation of humanitarian actors on war or war-like theatres, since the beginning of the 1990s; a phenomenon that raises a host of challenging legal and practical questions. The interest and importance of the subject comes from the conjunction of the two terms in the title: “International humanitarian law” and “non-governmental organizations”. Starting with the first, one has to recall that the involvement of third parties in the implementation of the modern law of war, or the jus in bello as it was traditionally called1, that started to be codified lato sensu in the second half of the 19th century, has been discreet and progressive. Thus, the first Geneva “Convention on the Amelioration of the Condition of the Wounded in Armies in the Field” of 1864 limits itself to providing for the “neutrality”, i.e. the immunity or inviolability of ambulances and military hospitals and medical personnel, as well as the “inhabitants” who tend the wounded, and establishing the red cross on white ground (the reverse of the Swiss flag) as distinctive sign. The Convention did not even mention the Geneva “Committee of Five” (which was later to become the “International Committee of the Red Cross”), whose initiative was at the basis of the convening of the diplomatic Conference that adopted the Convention; nor the national committees to be created under its auspices precisely to inter alia provide relief in time of war and tend to the wounded and the sick in the battlefield. A role for third parties in implementing international humanitarian law appears in later Conventions. First via the institution of “protecting powers”; an institution of diplomatic law, which functioned well on that basis during the First World War, through visits to prisoner of war camps to monitor the proper application of the Hague Convention and Rules of 1907 in those camps. At the same time, the ICRC started to exercise, perhaps unconsciously, what came to be known later as its “right of initiative”, by offering to the belligerents to visit as well the prisoners of war camps, subject of course to the consent of the detaining Powers. The role of third parties originated thus in practice before it was recognized and codified first in the Prisoners of war Convention of 1929, and later, on a much larger scale, in the 1949 Conventions. These Conventions, adopted in the aftermath of the Second World War, operated a quantum leap in the protection of war victims, by perfecting and extending it, in the new Fourth Convention, to civilian populations not 1 The current denomination, international humanitarian law, attributed to Jean Pictet, appeared and ended up prevailing after the adoption of the four 1949 Geneva Conventions.

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only in occupied territories (as the Hague Convention and Rules), but also throughout the territories of the belligerent Parties; as well as, via common article 3, to noninternational armed conflicts. They also purported to tighten the mechanisms of implementation, by elaborating and specifying the role of the protecting power, the ICRC, as well as other entities which can undertake specific tasks, such as the prisoners of war relief societies. Witness to this expansion of the codified role of third parties is the inventory that Claudie Barrat undertakes of a score of entities expressly mentioned in the diverse international humanitarian law treaties, detailing their legal status under these instruments in terms of mandate, rights, obligations and limitations; that which constitutes a very useful contribution in itself. The identification of these entities does not pose problem when they are designated by their proper name such as the ICRC, or by their category when it is a narrow and easily recognizable one such as civil defense organizations. But the 1949 Geneva Conventions introduced in addition to these, as possible providers of humanitarian services, certain highly generic categories such as the “impartial humanitarian body” that is mentioned in Common article 3 (with the ICRC as an example) that “may offer its services to the Parties” in a non-international armed conflict; and “any . . . humanitarian organization” that can exercise the “right of initiative”, the same as the ICRC, according to Common article 9. The classification of an entity under one of these latter categories can be highly controversial. This brings me to the second term of the title “non-governmental organizations”, and the legal questions it raises; a term that appeared for the first time in an international legal instrument in 1945 (article 71 of the UN Charter), but the concept remains elusive, lacking a generally accepted definition. It raises a host of interesting legal questions: what are the non-governmental organizations qualified to provide humanitarian services under international humanitarian law, and with what status, rights and obligations? In the second half of her study, Claudie Barrat undertakes a series of interesting legal analyses to answer these questions. Starting with the status of non-governmental organizations in international law, she compares what she calls the “traditional approach” of legal personality or subjectivity with the “modern” one of effective “participation” (person or subject v. participant) in the international legal system; opting for the latter. Similarly, having examined the treaty regulation of the role of third parties in the first part of her study, she puts the emphasis in the second part on the rights and obligations of non-governmental organizations under customary international humanitarian law; adopting in so doing a rather expansive view. But custom and treaty are inextricably intermingled in this regard, for most of custom here, as witnessed by the

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recent substantial study of the ICRC on the subject, is merely the extension of the protections provided by the treaties in international armed conflicts to non-international armed conflicts. Whether one agrees with the analyses and choices of the author in this second part or not, the study provides the reader with all the primary materials and the doctrinal positions necessary to reach his or her own conclusions on these important issues. Moreover, beyond the scholarly contribution of the study which fills an important gap in legal literature, Claudie Barrat seeks a more practical objective she reveals at the beginning of her introduction. Drawing on her valuable field experience with NGOs, UNRWA and the UNHCR, in the Middle East and elsewhere, she aims, by this scholarly study, to incite the non-governmental organizations to base their advocacy efforts on solid international humanitarian law foundations rather than seeking to occupy a supposedly legally uncharted free space. For this and for the scientific enrichment it procures, Claudie Barrat’s study has put us all in her debt.

Georges Abi-Saab

Honorary Professor of International Law Graduate Institute of International and Development Studies

Acknowledgments This book is the result of five years of doctoral research. I am greatly indebted to several people and institutions that supported me throughout the years of research. Firstly, my PhD thesis supervisor, Professor Vera Gowlland, who was always available to give me advice and encouragement at every stage of the way. Similarly, I am profoundly grateful for the support of Georges Abi-Saab who provided me with insightful comments and granted me time to discuss and prepare this edition, despite his very busy schedule. His foreword to this book further demonstrates his kindness and care. I would also like to thank Professor Andrew Clapham. Despite his significant commitments, he always managed to provide me with creative ideas and constructive criticism. My special thanks go to my external examiner, Professor Marco Sassòli, for his kindness and patience in going through my manuscript. I appreciated that both Andrew Clapham and Marco Sassòli provided a practitioner’s perspective and encouraged me to think out of the box. Similarly Professors Hélène Tigroudja and François Rubio challenged me with their comments to develop a stronger and more persuasive account on the legal status of NGOs in IHL. I would like to thank colleagues with whom I worked in the field and in Geneva. Although too numerous to be cited here, they have been a source of inspiration by their dedication to the humanitarian cause. A special thank you to my managers Jamal Krafess and Anna Segall who encouraged me and allowed me to take time off from work when I needed it the most. At the outset, I hardly understood the academic, emotional and physical difficulties in writing a PhD thesis. The five years of research writing involved countless cycles of exploration, doubt, re-writing, and perseverance. My thanks to all my friends for sharing my happiness at the beginning of this project and their constant encouragement that helped see me through to its completion. My gratitude also to Christophe Golay, who provided the source of inspiration at the origin of the research. I am indebted to the foundation Ernst and Lucie Schmidheiny for its funding over the period 2004/2005, which greatly helped me carry out this research. I would like to thank the Graduate Institute Publications along with Brill for helping me with the process of selection and editing, and for seeing through the publication of this book with dedication, patience and professionalism. I have been especially fortunate to benefit from the research assistance provided for by the ICRC library, and the UNOG library in Geneva. Without the documents of the ICRC library, this book would never have been completed. I feel privileged to have been able to research there, and to have had access to the ICRC archives.

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Finally, I want to thank my family, who supported and encouraged me during the writing period. I would like to thank my parents for allowing me to follow my ambitions throughout my childhood, my brother Christophe for his encouragements and my sister Frédérique for her constant support. The last word will be for my husband Gabriele for his endless love, care and encouragement.

List of Abbreviations AJIL American Journal of International Law CDDH Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974–1977 CRS Catholic Relief Services Federation International Federation of the Red Cross and Red Crescent Societies First Geneva Convention Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 Fourth Geneva Convention Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 ICC International Criminal Court ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY  International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law ILO International Labour Organisation IRC International Rescue Committee Movement Red Cross and Red Crescent Movement MSF Médecins sans Frontières National Societies National Societies of the Red Cross and Red Crescent NGO Non-governmental organisation Official Records Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–1977 OSCE  Organisation for Security and Co-operation in Europe Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977

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Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 Protocol III Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005 RCADI  Recueil des Cours de l’Académie de Droit International RGDIP Revue générale de droit international public RICR Revue internationale de la croix-rouge Second Geneva Convention Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949 Third Geneva Convention  Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 UN United Nations UNCC United Nations Compensation Commission UNHCR United Nations High Commissioner for Refugees US United States WHO World Health Organisation WVI World Vision International ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Introduction For humanitarian workers in armed conflicts situations, International Humanitarian Law (IHL) does not always appear as straightforward, useful and relevant as it should be. In debates with practitioners, questions on its added value, the relevance of its provisions, and the organisations it concerns often arise. Non-governmental organisations (NGOs) sometimes question the use of striving to respect IHL or even of referring to it during negotiations. Furthermore, a number of NGOs working in armed conflict situations have a limited knowledge of IHL. One of the reasons for this is that the number of NGOs assisting protected persons1 in armed conflicts has increased significantly since the adoption of the 1949 Geneva Conventions and 1977 Additional Protocols, as a result of the escalation in the number of people affected by conflicts. By the end of the 1990s, approximately 1 in 135 of the world’s population was in need of assistance and protection as a result of those conflicts.2 In the meantime, with the weakening and/or collapse of States, outside agencies have become the key lifeline for many distressed populations. The rapid growth in the resources and activities of intergovernmental organisations and NGOs is unprecedented—a fivefold increase in humanitarian aid, from approximately 800 million USD in 1989 to an approximate 4.4 billion USD in 1999.3 By 2004, the figure was 10 billion USD4 and in 2010 it was estimated at 17 billion USD.5 Calculations regarding the size of the NGO humanitarian footprint alone indicate a 91 per cent growth rate from 1997 to 2005.6 1 Article 4 of the Fourth 1949 Geneva Convention defines protected persons as “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” This category includes in this book the wounded, sick and shipwrecked, prisoners of war, civilians on the territory of the enemy and under its control, and civilians in an occupied territory. 2 Thomas G. Weiss, Humanitarian Intervention, Ideas in Action, Polity, Cambridge, 2007, p. 73. 3 Development Assistance Committee, Development Cooperation Report 2000, Organisation for Economic Cooperation and Development, Paris, 2001, pp. 180–181. 4 Ian Smillie and Larry Minear, The Charity of Nations: Humanitarian Action in a Calculating World, Kumarian Press, Bloomfield, 2004, p. 8. 5 Development Initiatives, GHA Report 2011, available at: http://www.globalhumanitarianassistance.org. 6 Abby Stoddard, Adele Harmer and Katherine Haver, Providing Aid in Insecure Environments: Trends in Policy and Operations, Overseas Development Institute, London, 2006, HPG Report 23, p. 16.

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NGOs are operating in an increasing difficult environment. The plethora of civil wars in the last twenty years challenged the traditional humanitarian operating principles. Belligerents failed to respect IHL; they attacked aid personnel,7 blocked relief convoys, used food aid to fuel their war efforts, and “taxed” humanitarians working in war zones.8 NGOs faced interference in their humanitarian activities and bureaucratic requirements for the entry and movement of staff and goods.9 Consequently, the most elementary struggle is for aid agencies to carve out a secure space in which to operate. To address these challenges, and ensure they can continue to conduct their humanitarian activities, NGOs have been forced to develop new strategies. Approaches have included codes of conduct signed with belligerents,10 emphasising the protection granted to them by emblems,11 the exchange of

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For example, during a one-year period from 2007 to 2008, 63 deaths of international and national staff of NGOs resulted from malicious acts. Other incidents against humanitarian NGOs included 236 attacks, 70 cases of detention by State authorities and 103 incidents of unlawful detention by non-State actors, 41 incidents of assault, 132 incidents of harassment, 138 cases of forced entry or occupation of premises, 113 armed robberies, 50 incidents of vehicle hijacking, 70 residential break-ins and 124 cases of theft. The number of incidents is, however, not an exhaustive account: see UN General Assembly, Safety and security of humanitarian personnel and protection of United Nations personnel, Report of the Secretary-General, UN Doc. A/63/305, 18 August 2008, p. 3, paras. 10–11. Thomas G. Weiss, Humanitarian Intervention, Ideas in Action, op. cit., p. 73. “Security Council Open Debate on the Protection of Civilians in Armed Conflict, Statement by Mr. John Holmes Under-Secretary-General for Humanitarian Affairs,” 27 May 2008, p. 7, available at: http://www.ochaonline.un.org/. See Chapter 4 for an analysis of the provisions of these codes of conduct. For example, one of the reasons for the creation of the new emblem of the Movement, the red crystal, was “to respond to the perceptions and realities of today’s world:” see the statement of ICRC chief spokesperson Antonella Notari in “Red crystal emblem: The Movement has reaffirmed its humanitarian purpose,” 22 June 2006, available at: http:// www.icrc.org/. NGOs have also vigorously condemned abuse of distinctive emblems by armed groups and other non-governmental actors: see for example, the protests of the ICRC when Colombian forces disguised as an international humanitarian mission and wearing the emblem of the ICRC, rescued 15 hostages from its opponent, the Fuerzas Armadas Revolucionarias de Colombia guerilla group, on 2 July 2008: John C. Dehn “Permissible Perfidy?, Analysing the Colombian Hostage Rescue, the Capture of Rebel Leaders and the World’s Reaction,” Journal of International Criminal Justice, Vol. 6, 2008, pp. 627–653.

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best practises,12 and/or increased advocacy.13 New advocacy concepts have been developed, the most recent one being the concept of “humanitarian space,” which generally ignores IHL.14 NGOs have also tried to engage more efficiently with rebel groups and other actors.15 Similarly, most of the literature dedicated to NGOs in armed conflict has been written by practitioners who examined the drawbacks of humanitarian assistance and the means of improving the effectiveness of NGO actions in politicised and volatile environments. They looked at practical solutions to deal with these issues including humanitarian advocacy or the adoption of codes of conduct, which often ignore IHL or refer only in part to “humanitarian principles.” The difficult context in which this humanitarian outreach is being conducted raises the issue of the legal framework applicable to NGOs in armed conflict situations. NGOs do not benefit from the protection granted by certain international treaties and other agreements to United Nations Agencies, including bi-lateral agreements with States and the United Nations’ 12

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Umbrella groups and consortia such as the Steering Committee for Humanitarian Response (SCHR) and ICVA in Geneva, InterAction in Washington and Voluntary Organ­ isations in Cooperation in Emergencies (VOICE) in Brussels have served as forums for dialogue and information sharing, and as vehicles for joint advocacy. See, for example, the 2009 “Framework for the Provision of Humanitarian Assistance in Gaza” (available at http://www.reliefweb.int/), drafted by humanitarian agencies in response to access constraints to the Gaza Strip. This Framework clarifies the minimum requirement to ensure an operating environment conducive to providing basic humanitarian assistance and it addresses the access requirement for meeting recovery needs in Gaza. To ensure practical implementation, the Framework has been shared with the Government of Israel and the Palestinian Authority. The term ‘espace humanitaire’ was coined by former Médecins sans Frontières (MSF) president Rony Brauman, who described it in the mid-1990s as “a space of freedom in which we are free to evaluate needs, free to monitor the distribution and use of relief goods, and free to have a dialogue with the people.” Most debates about humanitarian space make no mention of IHL. One exception is an article written by an ICRC staff member: Johanna Grombach Wagner, “An IHL/ICRC perspective on ‘humanitarian space,’ ” Humanitarian Exchange Magazine, Issue 32, December 2005. See, for example, European Commission Directorate General for Humanitarian Aid (ECHO), Report on Security of Humanitarian Personnel: Standards and Practices for the Security of Humanitarian Personnel and Advocacy for Humanitarian Space, 2004; “Humanitarian Engagement with Non-State Armed Actors: The Parameters for Negotiated Access,” HPN Humanitarian Practice Network, 2005; Manuel Bessler and Gerard Mc Hugh, Humanitarian Negotiations with Armed Groups, A Manual for Practitioners, United Nations, New York, 2006.

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conventions relating to privileges and immunities,16 or the Convention on the safety of Humanitarian Personnel.17 NGOs are protected to some extent by human rights treaties,18 but not as “NGOs.” This is unfortunate since although NGOs are often in the frontline of humanitarian operations with reduced protection and equipment, they frequently have to try to exert their activities in a more dangerous environment than that faced by UN agencies. Although the International Committee of the Red Cross (ICRC), the Federation of the Red Cross and Red Crescent (Federation), and the National Societies of the Red Cross and Red Crescent (National Societies) have a special position in IHL treaties that grant them advantages and responsibilities,19 it is not always clear how IHL provisions could be directly relevant to other NGOs such as Médecins sans Frontières or OXFAM. The role of NGOs has been recognised relatively recently in several IHL texts, only partially, however. Certain treaties allow for the possibility of 16 See Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly on 13 February 1946 and Convention on the Privileges and Immunities of the Specialized Agencies adopted by the General Assembly on 21 November 1947. Other bodies have concluded independent agreements: see, for example, the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, adopted on 23 May 1997 or the Agreement on Privileges and Immunities of the International Criminal Court, adopted on 9 September 2002. In addition, United Nations organisations frequently conclude bilateral agreements with national States, in countries where one of their offices is established, referring to their privileges and immunities. 17 There is, however, a Protocol to Convention on the Safety of United Nations and Associated Personnel that addresses the protection of NGOs delivering humanitarian assistance in the framework of a United Nations operation, but a limited number of NGOs can fit in this category. 18 Specific reference to NGOs is not frequently found in human rights treaties. This term is used in two of them, but only with regard to the procedural competence to submit applications or petitions in respect of alleged violations of the substantive rights: see Article 44 of the American Convention on Human Rights (‘non-governmental entity’) and Article 34 of the European Convention on Human Rights (‘nongovernmental organisation’). In human rights law, NGOs are mostly protected under provisions concerning the freedom of association, and members of NGOs are protected as individuals. On accountability, see Andrew Clapham, Human Rights Obligations of Non-State Actors, Academy of European Law, European University Institute, Oxford University Press, New York, 2006; Jordan Paust, “The Other Side of Right: Private Duties under Human Rights Law,” Harvard Human Rights Journal, Vol. 5, 1992, pp. 51–64; Chris Jochnick, “Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights,” Human Rights Quarterly, Vol. 21, No. 1, February 1999, pp. 56–79. 19 Henrik Beer, “The Red Cross, NGOS and the UN, Personal Reflections,” International Associations, 1975, p. 330.

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cooperation between NGOs and relevant international organisations: for example the 1997 Convention on Anti-Personnel Mines,20 the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property,21 the 1989 Convention on the Rights of the Child,22 and the 2003 Protocol on Explosive Remnants of War.23 Statutes of international courts and tribunals, such as the Statute of the International Criminal Court (ICC),24 the Statute of the International Criminal Tribunal for Rwanda (ICTR)25 and the Statute of the International Criminal Tribunal for Yugoslavia (ICTY)26 enable NGOs 20

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Articles 11, 12 and 13 give the possibility to the ICRC and ‘relevant non-governmental organizations’ to attend the meetings of the States Parties, the Review Conferences, and the Amendment Conferences as observers. Article 27 states that “The Committee shall co-operate with international and national governmental and non-governmental organizations having objectives similar to those of the Convention, its First Protocol and this Protocol,” and Article 30 that “the Parties shall, as appropriate: (b) develop and implement, in cooperation with UNESCO and relevant governmental and non-governmental organizations, peacetime training and educational programmes.” The Convention mentions in its Article 22 that “States Parties shall provide (. . .) cooperation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.” The Protocol, in its Article 8, provides that “High Contracting Parties may submit requests for assistance substantiated by relevant information to the United Nations, to other appropriate bodies or to other States. These requests may be submitted to the SecretaryGeneral of the United Nations, who shall transmit them to all High Contracting Parties and to relevant international organizations and non-governmental organizations.” The Statute of the ICC mentions in its Article 15 that “the Prosecutor (. . .) may seek additional information from States, organs of the United Nations, intergovernmental or nongovernmental organizations,” and in its Article 44 that “the Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court.” The Statute of the ICTR states in its Preamble that “The Security Council, (. . .) urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel” and adds in its Article 17 that “the Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.” The Statute of the ICTY, in its Article 18, states that “the Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly

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to be involved in their activities in providing information to the tribunals. Treaties, such as the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices,27 and the 2003 Protocol on Explosive Remnants of War,28 refer to “other appropriate bodies,” which could include NGOs. Similarly, other IHL texts such as the 1956 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War,29 Resolution 2444 (XXIII) of the UN General Assembly,30 and the 1994 Convention on the Safety of United Nations and Associated Personnel,31 mention “appropriate (international) organisations.” All of these treaties allow NGOs to collaborate with international organisations/courts in an advisory role. But they do not elaborate on the role, status, and rights of NGOs in times of armed conflict.

from Governments, United Nations organs, intergovernmental and non-governmental organizations.” 27 Article 11 states, “Each high Contracting Party in a position to do so shall provide assistance for mine clearance through the United Nations System, other international bodies or on a bilateral basis” and adds that “requests by High Contracting Parties for assistance (. . .) may be submitted to the UN, to other appropriate bodies or to other States.” 28 Article 8, states, “High Contracting Parties may submit requests for assistance substantiated by relevant information to the United Nations, to other appropriate bodies or to other States.” 29 Article 18 states, “States not involved in the conflict, and also all appropriate organizations, are invited to co-operate, by lending their good offices, in ensuring the observance of the present rules and preventing either of the Parties to the conflict from resorting to measures contrary to those rules.” 30 Resolution Respect for Human Rights in Armed Conflicts, 19 December 1968, which states in its Preamble that “the General Assembly, (. . .) invites the Secretary-General, in consultation with the International Committee of the Red Cross and other appropriate international organizations, to study: (a) Steps which could be taken to secure the better application of existing humanitarian international Conventions and rules in all armed conflicts; (b) The need for additional humanitarian international Conventions or for other appropriate legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare.” 31 This Convention is applicable to “persons deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary-General of the United Nations or with the International Atomic Energy Agency” (Article 1b). The ICRC did not wish to be covered by the Convention in order to maintain its independence from the United Nations: Umesh Palwankar, Rapport de Mission, DDM/JUR 94/3192, ICRC, Geneva, 9 May 1994, pp. 2–3. But other NGOs deployed under agreements with the United Nations would be covered.

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Most studies on the international status of NGOs have ignored IHL.32 The academic literature to date has either examined the status and role of NGOs in human rights law,33 in international law in general,34 or it has examined their role in conflict and peacekeeping situations from a political science context.35 32

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Exceptions include: Steve Charnovitz, “Non-Governmental Organizations in International Law,” American Journal of International Law, Vol. 100, 2006, pp. 348–372; Anna-Karin Lindblom, Non-Governmental Organisations in International Law, Cambridge University Press, Cambridge, 2005; Kerstin Martens, “Examining the (Non-)Status of NGOs in International Law,” Indiana Journal of Global Law Studies, Vol. 10, 2003, pp. 1–24; Karsten Nowrot, “Legal Consequences of Globalization: the Status of Non Governmental Organizations under International Law,” Indiana Journal of Global Law Studies, Vol. 6, 1998–1999, pp. 579–645; Christine Bakker and Luisa Vierucci, “Introduction: a Normative or Pragmatic Definition of NGOs?,” in Dupuy, Pierre-Marie and Vierucci, Luisa, NGOs in International Law, Efficiency in Flexibility?, Edward Elgar, Cheltenham, pp. 1–20; Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law, Intersentia, Antwerp/Oxford/Portland, 2010. See for example William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine, Palgrave, London, 2001; Claude Jr. Welch (ed), NGOs and Human Rights: Promise and Performance, University of Pennsylvania Press, Pennsylvania, 2001; Claude Jr. Welch (ed), Protecting Human Rights in Africa: Strategies and Roles of Non-Governmental Organizations, University of Pennsylvania Press, Pennsylvania, 1995; Peter Willets (ed), The Conscience of the World: The Influence of Non-Governmental Organisations in the UN System, Hurst and Co., Oxford, 1996; Yves Beigbeder, Le role international des organisations non-gouvernementales, Bruylant, Bruxelles, 1992; Mario Bettati and Pierre-Marie Dupuy (ed), Les ONG et le Droit International, Economica, Paris, 1986; Sara Guillet, ‘Nous, peoples des Nations Unies . . .’: l’action des organisations non-gouvernmentales dans le système international de protection des droits de l’homme, Centre de Droit International de Paris I, Perspectives internationales, Montchrestien, 1995; Anja Mihr, “Non-Governmental Organizations in the Human Rights World,” in Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, pp. 377–390. See, for example, Mario Bettati and Pierre-Marie Dupuy, Les O.N.G. et le Droit international, Collection Droit international, Economica, Paris, 1986; Peter Willetts (ed.), Pressure Groups in the Global System, The Transnational Relations of Issue-Orientated NonGovernmental Organizations, Frances Pinter, London, 1982; Lyman C. White, International Non-Governmental Organizations, Their Purposes, Methods, and Accomplishments, Rutgers University Press, New Brunswick, 1951; Peter Willets, Non-Governmental Organizations in World Politics: The Construction of Global Governance, Routledge, London/New York, 2010; Rephael H. Ben-Ari, The Normative Position of International Non-Governmental Organizations Under International Law: An Analytical Framework, Martinus Nijhoff Publishers/Brill, Leiden, 2012. See, for example, Henry F. Carey and Oliver P. Richmond (ed), Mitigating Conflict: The Role of NGOs, Frank Cass, London, 2003; Ann C. Hudock, NGOs and Civil Society: Democracy by Proxy?, Polity Press, Cambridge, 1999; Thomas Weiss and Leon Gordenker (ed), NGOs, the

8

Introduction

When legal scholars refer to the status of NGOs in IHL, the ICRC is systematically cited (on the basis of its mention in IHL treaties), but no other NGOs are mentioned.36 Some scholars even negate any reference to humanitarian agencies in IHL treaties.37 In recent years, a number of organisations acting in armed conflicts have however argued that they are “impartial humanitarian bodies,” according to Article 3 common to the four Geneva Conventions of 1949,38 or “impartial humanitarian organisations” in the terms of Article 59 of the Fourth Geneva Convention,39 and therefore benefit from the rights granted by these treaties. The Secretary-General of the United Nations referred to common Article 3 when describing its activities in internal armed conflicts at the International Law Commission.40 The Office of the United Nations High Commissioner for

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UN, and Global Governance, Lynne Rienner, Boulder, 1996; Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations: The Right and Duty to Humanitarian Assistance, Martinus Nijhoff, Dordrecht, 1991; Wolf-Dieter Eberwein, “Politics and the World of Humanitarian Aid,” in Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, pp. 363–376; Peter A. Gourevitch, David A. Lake and Janice Gross Stein, The Credibility of Transnational NGOs: When Virtue is Not Enough, Cambridge University Press, Cambridge/New York, 2012; Sabine Lang, NGOs, Civil Society and the Public Sphere, Cambridge University Press, Cambridge, 2013. See, for example, Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations, The Right and Duty to Humanitarian Assistance, Martinus Nijhoff, Dordrecht, 1991, p. 327; Boleslaw Adam Boczek, International Law, Scarecrow Press, Lanham, 2005, p. 76. “It cannot strictly be said, therefore, that the Geneva Conventions confer rights or impose obligations upon humanitarian agencies. The Conventions simply do not address these actors:” Kate Mackintosh, Principes of Humanitarian Action in IHL, Humanitarian Policy Group/Overseas Development Institute, London, March 2000, p. 3, available at: http:// www.odi.org.uk/. Article 3 reads as follows, “An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” Article 59 reads as follows: “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 either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, 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.” “The part which can be played by “an impartial humanitarian body” such as the International Committee of the Red Cross, and ways in which its services may be used

introduction

9

Refugees (UNHCR) has asserted that it is an “impartial humanitarian body”.41 UNHCR has also been cited as an “impartial humanitarian organisation”.42 A number of NGOs such as Médecins sans Frontières, Concern, Geneva Call, Mines Advisory Group, and Action contre la faim have also argued that they are “impartial humanitarian bodies.” Other NGOs, such as OXFAM, CARE and Catholic Relief Services, have been recognised as such by States and/or scholars. This book examines the validity of these claims, and their legal consequences. The introductory Chapter 1 defines NGOs, armed conflicts and customary law. The following two Chapters examine the humanitarian organisations cited in IHL treaties: Chapter 2 reviews the references to the members of the Red Cross and Red Crescent Movement in IHL treaties while Chapter 3 analyses the 13 other organisations cited in such treaties. The references to these organisations in treaties raise the issue of the legal personality of NGOs in IHL, examined in Chapter 4, and of the rights granted to them in customary international humanitarian law, detailed in Chapter 5. The conclusion regarding the legal status of NGOs in IHL, in the last Chapter, demonstrates that IHL treaties are fulfiling their purposes for humanitarian workers, and that IHL can be a powerful argument for NGOs.

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by the parties, have also been discussed. It may be recalled in this connexion that the Secretary-General has, on occasions, engaged in various humanitarian activities with respect to internal armed conflict and, in one instance, provided a representative, by agreement with the Government, who visited the war affected areas to observe the situation of the population there and assisted in arranging relief for the civilian victims of the hostilities:” see Review of the Commission’s long-term programme of work, Survey of international law, Working paper prepared by the Secretary-General, UN Doc. A/CN.4/245, 23 April 1971, p. 93, para. 416. “Dans les Balkans, il faudrait mettre davantage l’accent sur des mesures de réconciliation préalablement au rapatriement des réfugiés. Le HCR, en tant qu’organisme humanitaire impartial et apolitique, est le mieux à même de poursuivre cette stratégie”: Assemblée générale, Comité exécutif du programme du Haut Commissaire des Nations Unies pour les réfugiés, Cinquantième session, Compte rendu analytique de la 537ème Séance, A/AC.96/ SR.537, 30 novembre 1999, p. 6. Roberta Cohen and Charlotte Ku, “Principles Relating to Humanitarian Assistance, Guiding Principles on Internal Displacement: Section IV,” Studies in Transnational Legal Policy, Vol. 32, 2000, p. 68.

chapter 1

Concepts: NGOs, Armed Conflicts and Customary Law This introductory chapter addresses the theory relevant to the arguments made throughout the book. The doctrine is not unanimous on the definition of an NGO in International Law, the body of law applicable in times of armed conflicts, the distinction between international and non-international armed conflicts, or the definition and sources of Customary International Law. These concepts are however necessary to an understanding of the legal status of NGOs operating in armed conflicts and are therefore examined below. 1

What is an NGO?

There is no accepted definition of the term, ‘non-governmental organisation’, in International Law.1 A frequently quoted article in the Encyclopaedia of Public International Law even suggested that NGOs might encompass multinational corporations and national liberation movements.2 Consequently, each institution has its own definition of its relations with NGOs3 and international

1 Klaus Hufner, “Non-Governmental Organizations,” in Rudiger Wolfrum and Christiane Philipp (eds.), United Nations: Law, Policies and Practice, Martinus Nijhoff Publishers, Dordrecht, 1995, pp. 927 and 933; Anna-Karin Lindblom, The Legal Status of Non-Governmental Organisations in International Law, Uppsala Universitet, Uppsala, 2001, p. 46. 2 Hermann H.-K. Rechenberg, “Non-Governmental Organizations,” in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Consolidated Library Edition, Amsterdam, 1997, p. 612. 3 John Boli and George M. Thomas (eds.), Constructing World Culture, International NonGovernmental Organisations Since 1875, Stanford University Press, Stanford, 1999, p. 20; Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity Within Diversity, Martinus Nijhoff, The Hague, 1995, p. 32; Peter Willetts, The Conscience of the World: The Influence of Non-governmental Organizations in the UN Systems, Brookings Institution Press, Washington, 1996, pp. 3–5; Hermann H.-K. Rechenberg, “Non-Governmental Organizations,” in Encyclopedia of Public International Law, op. cit., p. 612; Josef Lador-Lederer, International Non-Governmental Organisations and Economic Entities, Sythoff, Leyden, 1963, p. 60.

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law recognises the existence of NGOs through several functional categories.4 However, for an NGO to exist, legal scholars generally admit that there are several elements that must all be present. The first element is the requirement of autonomy from the State, that is, the ‘non-governmental’ quality.5 NGOs are not established by States through governmental agreement under international law6 and are not empowered with governmental powers.7 Rather, they are formed on the initiative of private, natural, or juridical persons based upon a contract governed by domestic civil law.8 Moreover, although they can depend upon governmental funding, NGOs 4 “Le droit international reconnaît l’existence d’entités qu’il nomme ONG mais il ne crée que des catégories fonctionnelles, sans cesse différentes, dans le but, not pas d’isoler une catégories juridique unique mais d’octroyer à certaines seulement de ces ONG une capacité à intervenir sur la scène internationale (statut consultatif, partenariat, observateur . . .). Pour ce faire, il renvoie à des entités crées en vertu des droits internes, et qui relèvent donc de catégories juridiques propres à ces derniers (associations, fondations, syndicats, partis politiques . . .):” Dorothée Meyer, “ONG: une catégorie juridique introuvable, une définition utilitaire,” dans Johanna Siméant et Pascal Dauvin (eds.), O.N.G. et Humanitaire, L’Harmattan, Paris, 2004, p. 141. 5 Hermann H.-K. Rechenberg, “Non-Governmental Organizations,” in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, op. cit., p. 276; Mario Bettati, “La contribution des organisations non gouvernementales à la formation et à l’application du droit international,” dans Pierre-Marie Dupuy et al. (eds.), Les ONG et le droit international, Economica, Paris, 1986, p. 7; David Horton Smith, “What are non governmental organizations, voluntary associations, and voluntary groups?,” Associations Internationales, December 1972, p. 613; Grigori Morozov, “International non-governmental organisations and legal issues,” Associations transnationales, août-septembre 1980, p. 374. 6 In 1950, the ECOSOC established the following definition of a NGO: “Any international organization which is not created by inter-governmental agreement:” see E/RES/288(X), Review of consultative arrangements with non-governmental organizations, 27 February 1950, para. 8. The present provisions of the ECOSOC consultative arrangements include the following definition: “Any such organization that is not established by a governmental entity or intergovernmental agreement . . ., including organizations that accept members designated by governmental authorities, provided that such membership does not interfere with the free expression of views of the organization:” see E/RES/1996/31, Consultative relationship between the United Nations and non-governmental organizations, 25 July 1996, para. 12. 7 Clieve Parry, John Grant, Anthony Parry and Arthur Watts (eds.), Encyclopaedic Dictionary of International Law, Oceana Publications, New York, 1986, p. 290: “Non-governmental organizations are not empowered with government powers. They operate under rules of private law and not of public law.” 8 Peter Macalister-Smith, “Non-Governmental Organizations, Humanitarian Action and Human Rights,” in Ulrich Byerlin, Michael Bothe, Rainer Hofmann and Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Volkerrecht-EuroparechtStaatsrecht, Festchrift fur Rudolf Bernhardt, Max Planck Institute, Berlin/Heidelberg/New

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are free from governmental influence.9 Finally, NGOs should not perform public functions nor should they hold governmental powers, as specified in most national laws regarding NGOs and associations.10 A second element of the definition is a non-profit making aim, a requirement that is shared by most definitions in international instruments. The Convention on the Recognition of the Legal Personality of International NonGovernmental Organisations considers in its Article 1 that NGOs should have “a non-profit-making aim of international utility.”11 There is, however, some controversy as to the extent to which NGOs must be non-profit oriented.12 Indeed,



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York/London/Paris/Tokyo/Hong Kong/Barcelona/Budapest, 1995, p. 481; Finn Seyersted, “Applicable Law in Relations Between Intergovernmental Organizations and Private Parties,” RCADI, Vol. 122, 1967, pp. 433–34; Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law, Intersentia, Antwerp/Oxford/Portland, 2010, p. 9. Article 1 of the Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations states it would apply to NGOs, which “have been established by an instrument governed by the internal law of a Party.” Stephan Hobe, “Global Challenges to Statehood: The Increasingly Important Role of Nongovernmental Organizations,” Indiana Journal of Global Legal Studies, Vol. 5, 1997, p. 194; Waldemar Hummer, “Internationale und transnationale Akteure an oder unter der Schwelle der Volkerrechtssubjektivitat,” in Hanspeter Neuhold et al. (eds.), Osterreichisches Handbuch Des Volkerrechts, Third edition, Verlag, Manz, 1997, p. 225; Anna-Karin Lindblom, The Legal Status of Non-Governmental Organisations in International Law, op. cit., pp. 53–54. This is also demonstrated by the requirement, stated in ECOSOC Resolution 1996/31, that any financial contribution or other direct or indirect support from a government has to be openly declared and fully recorded in the financial records of the NGO in question. See, for example, the national legislations of South Africa, Ivory Coast, Madagascar, Mali, Sudan, Tchad, Togo, Argentina, Brazil, Chile, Colombia, El Salvador, Equator, Guatemala, Haiti, Mexico, Nicaragua, Panama, Paraguay, Peru, Sainte-Lucie, Uruguay, USA, Australia, Bangladesh, Japan, New Zealand, Pakistan, Sri Lanka, Saudi Arabia, Israel, Lebanon, Morocco, Palestinian Territory, Belgium, Spain, Finland, France, Great Britain, Greece, Ireland, Netherlands, Portugal, Germany, Sweden, Albania, Bulgaria, Estonia, Leetonia, Lithuania, Macedonia, Romania, and Switzerland, in Michel Doucin, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, La documentation française, Paris, 2000. Convention available on the website of the Council of Europe, along with its Explanatory Report, at http://www.conventions.coe.int/. Hermann H.-K Rechenberg, “Non-Governmental Organizations,” in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, op. cit., p. 276; Waldemar Hummer, “Internationale und transnationale Akteure an oder unter der Schwelle der Volkerrechtssubjektivitat,” in Hanspeter Neuhold et al. (eds.), Osterreichisches Handbuch Des Volkerrechts, op. cit., p. 225; Martha L. Schweitz, “Indigenous Environmental NGOs and International Law:

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it would be inappropriate to apply this criterion in a literal sense.13 In order to pursue its purpose, an NGO can pursue the income needed to pay salaries and other operating expenses, especially since they have to secure their independence from governmental influence.14 However, it cannot simply distribute excess income (profit). The World Bank Handbook on Good Practices Relating to NGOs states that, “If any profits are earned, they are not and cannot be distributed as such.”15 Therefore, NGOs exclude commercial companies or other bodies that exist to distribute financial benefits among their members.16 This criterion is specified in most national laws regarding NGOs and associations.17 Another criterion relates to the requirement that the objectives of NGOs be mostly public in nature, involving, for example, the protection of human rights or the environment.18 The Institut de Droit International contained a

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A Reconstruction of Roles and Possibilities,” University of British Columbia Law Review, Vol. 27, 1993. Peter Macalister-Smith, “Non-Governmental Organizations, Humanitarian Action and Human Rights,” in Ulrich Byerlin, Michael Bothe, Rainer Hofmann and Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Volkerrecht-EuroparechtStaatsrecht, Festchrift fur Rudolf Bernhardt, op. cit., p. 481. Timothy C. Evered, “Foreign Investment Issues for International Non-Governmental Organizations: International Health Projects in China and the Former Soviet Union,” Buffalo Journal of International Law, Vol. 3, 1996; Peter R. Baehr, “Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Human Rights NGOs,” in Erik Denters and Nico Schrijver (eds.), Reflections on International Law from the Low Countries, in honour of Paul de Waart, Martinus Nijhoff, The Hague, 1998. World Bank Handbook on Good Practices Relating to Non-Governmental Organizations (Discussion Draft), May 1997, p. 19, as cited in Anna-Karin Lindblom, The Legal Status of Non-Governmental Organisations in International Law, op. cit., p. 54. David Horton Smith, “What are non governmental organizations, voluntary associations, and voluntary groups?,” Associations Internationales, December, 1972, p. 613; Explanatory Report on the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, Strasbourg, 1986, p. 7. See, for example, the national legislation adopted in South Africa, Ivory Coast, Ghana, Madagascar, Mali, Niger, Nigeria, Rwanda, Tchad, Togo, Zambia, Argentina, Bolivia, Brazil, Chile, Colombia, El Salvador, Equator, Guatemala, Haiti, Mexico, Nicaragua, Panama, Paraguay, Peru, Sainte-Lucie, the United States, Australia, Bangladesh, Brunei, Japan, New Zealand, Pakistan, Sri Lanka, Vanuatu, Saudi Arabia, Israel, Lebanon, Morocco, Palestinian Territory, Belgium, Spain, Finland, France, Great Britain, Greece, Ireland, Netherlands, Portugal, Germany, Sweden, Albania, Bulgaria, Estonia, Leetonia, Lithuania, Macedonia, Romania, and Switzerland, in Michel Doucin, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, op. cit. Peter Macalister-Smith, “Non-Governmental Organizations, Humanitarian Action and Human Rights,” in Ulrich Beyerlin et al. (eds.), Recht Zwischen Umbruch und Bewahrung, op. cit., p. 481.

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similar criterion in its definition, stating that the NGO should perform international activity in a sphere of general and not purely national interest.19 The Convention on the Recognition of the Legal Personality of International NonGovernmental Organisations also considers in its Article 1 that NGOs should have an “aim of international utility,”20 which includes humanitarian aims. This requirement of humanitarian aims is specified in most national laws21 regarding NGOs and associations.22 Considering these criteria, some dispute exists whether private organisations that pursue primarily religious or political purposes can be regarded as NGOs. For example, the Draft World Bank Handbook on Good Practices Relating to Non-Governmental Organizations excludes from the definition of NGOs

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Article 2: “Les associations internationales visées à l’article 1er sont des groupements de personnes ou de collectivités, librement crées par l’initiative privée, qui exercent, sans esprit de lucre, une activité internationale d’intérêt général, en dehors de toute préoccupation d’ordre exclusivement national:” Annuaire de l’Institut de Droit International, 1950, Tome II, p. 353. The expression “of international utility” in the Convention means that the NGO must not be simply of national or local utility, but of benefit to the international community. Political parties and other political organisations, whose aims and activities are centred on the domestic problems of a given country, are thereby excluded: Explanatory report on the European Convention on the Recognition of the Legal Personality of International NonGovernmental Organisations, Strasbourg, 1986, pp. 7–8. The requirement of “international utility” is further specified in the Report by reference to the UN Charter and the Statute of the Council of Europe, p. 8. As specifically stated in several national legislations on NGOs: the law of 14 August 1997 in Madagascar states that an NGO is “un groupement de personnes physiques ou morales, autonome, privé, structuré, légalement déclaré et agrée, à but non lucrative, à vocation humanitaire, exerçant de façon professionnelle et permanente des activités à caractère caritatif, socio-économique, socio-éducatif et culturel sous forme de prestations de services en vue du développement humain durable, de l’autopromotion de la communauté ainsi que de la protection de l’environnement,” in Mali NGOs are “associations ou organisations en situation d’apporter une aide technique, matérielle ou financière à des projets de développement et agissant dans un but humanitaire.” See Michel Doucin, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, op. cit., p. 20. See, for example, the national legislations of Angola, Benin, Burkina Faso, Congo, Ghana, Madagascar, Mali, Chad, Togo, Argentina, Guatemala, Haiti, Mexico, Nicaragua, Panama, Peru, Sainte-Lucie, Uruguay, USA, Australia, Bangladesh, China, Japan, New Zealand, Pakistan, Sri Lanka, Saudi Arabia, Lebanon, Morocco, Palestinian Territory, Belgium, France, Great Britain, Greece, Ireland, Macedonia, Romania, and Switzerland, in Michel Doucin, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, op. cit.

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“trade unions, political parties, profit-distributing cooperatives, or churches.”23 National political parties are also often excluded from the definition of NGO; for example, with the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations and the United Nations Economic and Social Council (ECOSOC) consultative arrangements. Some of these have, however, been recognised as associations by European case-law.24 Organisations pursuing religious purposes could be regarded as NGOs as their religious nature does not preclude them from non-profit-making activities of international utility nor from carrying out humanitarian activities. Furthermore, for an NGO to be considered international, the organisation must demonstrate either a transnational scope of activities25 covering “where possible, a substantial number of countries in different regions of the world,” or it must “be international in its structure.”26 In the practice of the NGO Committee of the ECOSOC, this is the case if an organisation has operations in at least three countries. Other intergovernmental organisations, such as the Council of Europe, require only activities with effect in at least two

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World Bank Handbook on Good Practices Relating to Non-Governmental Organizations (Discussion Draft), p. 19, as cited in Anna-Karin Lindblom, The Legal Status of NonGovernmental Organisations in International Law, op. cit., p. 55. For example, the European Court of Human Rights (ECHR) considered that the Catholic Church of Canea is an association: ECHR, Canea Catholic Church v. Greece, Judgement, 16 December 1997, para. 30. See ECHR, Sidiropoulos v. Greece, Appeal No. 26695/95, 10 July 1998; United Communist Party of Turkey v. Turkey, Appeal No. 19392/92, 30 January 1998; Freedom and Democracy Party v. Turkey, Appeal No. 23885/94, 8 December 1999; Hasan and Chaush v. Bulgaria, Appeal No. 30985/96, 26 October 2000; Metropolitan Church of Bessarabia v. Moldova, Appeal No. 45701/99, 13 December 2001; Moscow Branch of the Salvation Army Against Russia, Appeal No. 72881/01, 5 October 2006. See also Lance S. Lehnhof, “Note, Freedom of Religious Association: The Right of Religious Organisations to Obtain Legal Entity Status Under the European Convention,” Brigham Young University Law Review, 2002, p. 581. The ECHR made clear in United Communist Party of Turkey and Others v Turkey that trade unions are within the definition of associations: 30 January 1998, para. 24. Resolutions and decisions of the Economic and Social Council: organizational session for 1996, New York, 25 January and 6–9 February 1996, UN Doc. E/1996/96, 1997, p. 8; Economic and Social Council, Resolution 31, UN ESCOR, 49th Session, Supp. No. 1, p. 54; Stephan Hobe, “Global Challenges to Statehood: The Increasingly Important Role of Nongovernmental Organizations,” Indiana Journal of Global Legal Studies, Vol. 5, 1997, p. 194. Economic and Social Council, Resolution 1296, UN ESCOR, 44th Session, Supp. No. 1, p. 21.

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States.27 Others consider NGOs that are active in more than one country to be international.28 In addition, it is generally required within academic literature that an NGO be oriented toward the rule of law, which excludes from the definitional scope of NGOs organisations that pursue illegal goals, like transnational terrorist or organised crime groups.29 Further characteristics of NGOs may include the requirements of minimal organisational structure,30 an established headquarters,31 and a democratic structure.32 27 28

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See the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations of 24 April 1986. Peter Macalister-Smith, “Non-Governmental Organizations, Humanitarian Action and Human Rights,” in Ulrich Byerlin, Michael Bothe, Rainer Hofmann and Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Volkerrecht-EuroparechtStaatsrecht, Festchrift fur Rudolf Bernhardt, op. cit., p. 481. However, this does not mean that organisations, which are sometimes willing to breach the law to pursue their goals, cannot be regarded as NGOs. Thus, the strategy of Greenpeace, which sometimes breaks laws intentionally, does not exclude this organisation from being an NGO: Stephan Hobe, “Global Challenges to Statehood: The Increasingly Important Role of Nongovernmental Organizations,” op. cit., p. 194; Waldemar Hummer, “Internationale und transnationale Akteure an oder unter der Schwelle der Volkerrechtssubjektivitat,” in Hanspeter Neuhold, et al. (eds.), Osterreichisches Handbuch Des Volkerrechts, op. cit., p. 226. Violent groups or groups engaging systematically in illegal behaviour should however be excluded: Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law, op. cit., p. 9. The Convention on the Recognition of the Legal Personality of International NonGovernmental Organisations includes the criteria to “have been established by an instrument governed by the internal law of a Party” and to “have their statutory office in the territory of a Party and the central management and control in the territory of that Party or of another Party.” Economic and Social Council, Resolution 31, UN ESCOR, 49th Sess., Supp. No. 1, p. 54. The case-law of the European Court for Human Rights supports this position. In the case of Freedom and Democracy Party (OZDEP) v. Turkey, the Democracy Party filed its application to the Commission subsequent to an application by Turkish authorities to the Constitutional Court to have the party dissolved. Shortly after the filing of the application to the Commission, a meeting of the founding members of OZDEP resolved to dissolve the party. Nevertheless, the proceedings before the Commission and the Court were continued with OZDEP as the applicant, and the judgement of the Court was issued in the name of the party: Freedom and Democracy Party (OZDEP) v. Turkey, 8 December 1999, paras. 1–12. The Court, however, ordered the compensation for non-pecuniary damage sustained by the founders and members of the applicant party to be paid to OZDEP’s representative for the purposes of the proceedings before the Court: see para. 57.

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To conclude, although there is no definition of the term in international law, it is generally accepted that NGOs are autonomous from the State, have a nonprofit making aim, have public objectives, and are oriented toward the rule of law. To be subjected to IHL, such NGOs should also be operating in conflict situations. 2

Applicable Law in Times of Armed Conflicts

There are multiple international laws that are applicable in times of armed conflict.33 Included in this list are international treaties in IHL, refugee law and human rights law, as well as resolutions from United Nations bodies. In 1966, Jean Pictet explained that “IHL comprises of two branches: the law of war and human rights.”34 International tribunals and legal scholars have been considering the relationship between these three bodies of law for a number of years.35 In fact, IHL cannot be insulated from developments occurring in other fields

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For a review, see Michael Bothe, “The Historical Evolution of IHL, International Human Rights Law, Refugee Law and International Criminal Law,” in Horst Fischer, Ulrike Froissart, Wolff Heinstschel von Heinegg, Christian Raap (eds.), Krisensicherung und Humanitärer Schutz—Crisis Management and Humanitarian Protection, Berliner Wissenschafts, Berlin, 2004, pp. 37–45. See also René Provost, International Human Rights and IHL, Cambridge University Press, Cambridge, 2002. Jean Pictet, The Principles of IHL, ICRC, Geneva, 1966, p. 10. See, for example, Louise Doswald-Beck and Sylvain Vité, “IHL and Human Rights Law,” International Review of the Red Cross, No. 293, 1993, pp. 94–119; Vera Gowlland-Debbas, “The Right to Life and Genocide: The Court and an International Public Policy” in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons, Cambridge University Press, Cambridge, 1999, pp. 315–337; Hans-Joachim Heintze, “The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts,” German Yearbook of International Law, Vol. 45, 2002, pp. 60–77; Sub Commission on the Promotion and Protection of Human Rights, Administration of Justice, Rule of Law and Democracy— Working paper on the relationship between human rights law and IHL by Françoise Hampson and Ibrahim Salama, UN Doc E/CN.4/Sub.2/2005/14, 14 June 2005; Marco Sassòli, “Mise en oeuvre du droit international humanitaire et du droit international des droits de l’homme: une comparaison,” Annuaire suisse de droit international, Vol. XLIII, 1987, pp. 24–61; Vera Gowlland-Debbas “The Expanding International Concern,” Peace Review, San Francisco, Tome 5, No. 3, pp. 287–292.

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of international law such as human rights or refugee laws.36 The link between IHL and human rights even has practical consequences.37 It is generally considered that these different bodies of law are not exclusive and all apply in times of armed conflict.38 In particular, the academic literature39 and the Human Rights Committee40 share the view that human rights norms are complementary to IHL norms in times of armed conflict. However, in the Nuclear Weapons Advisory Opinion, the International Court of Justice (ICJ) recognised the primacy of IHL over human rights law in

36

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Iain Scobbie, “The Approach to Customary International Law in the Study,” in Elizabeth Wilmshurst and Susan Breau (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 17–18. Andrew Clapham states: “There is a ‘central dilemma’ that haunts organisations involved in the delivery of humanitarian assistance. ‘The central dilemma is whether it is possible to supply humanitarian assistance, under the auspices of a governing authority that abuses human rights, without also giving undue assistance to that authority, and hence doing a disservice to the people one is aiming to help’ (African Rights, 1994):” Andrew Clapham, “Human Rights,” in E. Wayne Nafziger and Raimo Väyrynen (eds.), The Prevention of Humanitarian Emergencies, Palgrave, Basingstoke, 2002, p. 243. The principle that human rights provisions are applicable in times of armed conflicts was affirmed by the ICJ in the Nuclear Weapons and the Wall advisory opinions and in the case Democratic Republic of the Congo v. Uganda: See Nuclear Weapons, Advisory Opinion, para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106; International Court of Justice, Armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 216. This principle has been addressed by multiple other international bodies, including the European Court of Human Rights, the Inter-American Court on Human Rights, and the Human Rights Committee, as well as by national courts including British courts and the Israeli High Court of Justice. See, for example, Hans-Joachim Heintze, “On the Relationship Between Human Rights Law Protection and IHL,” International Review of the Red Cross, Vol. 86, No. 856, December 2004, pp. 789–814; A. H. Robertson, “IHL and Human Rights,” in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la CroixRouge, en l’honneur de Jean Pictet, Comité international de la Croix-Rouge, Genève/La Haye, 1984, pp. 793–802; Robert Quentin-Baxter, “Human Rights and IHL: Confluence of Conflict?,” Australian Yearbook of International Law, Vol. 9, 1985, pp. 94–112. “The Covenant applies also in situations of armed conflict to which the rules of IHL are applicable. While, in respect of certain Covenant rights, more specific rules of IHL may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive:” UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 11.

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armed conflict, thereby designating IHL as lex specialis.41 In the 2004 Advisory Opinion on the Wall, the ICJ stated that it should take into consideration human rights law and, as lex specialis, IHL, implying that contradictory provisions should be regulated according to the principle of lex specialis.42 The Inter American Commission of Human Rights followed this approach,43 as did the International Commission of Inquiry on Darfur.44 Therefore, the relationship between human rights law and IHL must be solved by reference to the principle ‘lex specialis derogat legi general’ but using the lex specialis paradigm does not necessarily result in IHL prevailing over human rights law (depending on the context) and the lex generalis must be 41 This lex specialis rule is asserted rather than explained in the Nuclear Weapons Advisory Opinion: Article 6 of the ICCPR (the right not to be deprived arbitrarily of one’s life) is nonderogable, and the ICJ held that it, therefore, applied to situations of armed conflict, such that, even during hostilities, it is forbidden arbitrarily to deprive a person of his or her life. However, as IHL is lex specialis (or specific) to situations of armed conflict, it defines the meaning of “arbitrarily” where human rights law and IHL coexist. Human rights norms can continue to apply in situations of armed conflict, but its scope is set by IHL norms: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 26. For a comprehensive analysis of this issue, see Vera Gowlland-Debbas, “Human Rights and IHL: Are there some Individuals Bereft of all Legal Protection? The Relevance of Paragraph 25 of the ICJ’s Advisory Opinion on Nuclear Weapons,” in Mapping New Boundaries, Proceedings of the 98th Annual Meeting, American Society of International Law, Washington, 2004, March 31–April 3, pp. 358–363. See also Vera Gowlland-Debbas, “The Right to Life and Genocide: the Court and an International Public Policy,” in Philippe Sands and Laurence Boisson de Chazournes (eds.), International Law, the International Court of Justice and Nuclear Weapons, Cambridge University Press, Cambridge, 1999, pp. 315–337. 42 In the Advisory Opinion, the ICJ states that there are three possible situations: some rights may be exclusively matters of IHL, others may be exclusively of human rights law and others may be matters of both these branches of international law: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 9 July 2004, para. 106. 43 “[I]n a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis:” see Corad v. USA, para. 42. 44 “Two main bodies of law apply to the Sudan in the conflict in Darfur: international human rights law and IHL. The two are complementary. . . . The difference lies in that whilst human rights law protects the individual at all times, IHL is the lex specialis, which applies only in situations of armed conflict:” Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, Geneva, para. 143.

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taken into account when interpreting the lex specialis.45 Human rights law can strengthen the rules of IHL by providing a more exact formulation of State obligations.46 If necessary, human rights can also complement IHL norms. This can be especially true in non-international armed conflict, where it is generally considered that when IHL treaties are ineffectual, human rights law might be offered as an answer.47 Human rights law can help clarify IHL guarantees where uncertainty exists.48 Consequently, the status of NGOs operating in armed conflicts is informed by a study of IHL treaties and texts.49 3

International and Non-International Armed Conflicts

3.1 Definitions of Both Types of Conflict IHL makes the distinction between two types of armed conflicts: the international and non-international ones. International armed conflicts are divided into several categories. The first category includes conflicts between at least two States.50 The second category 45

46 47

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Marco Sassòli and Laura Olson, “The legal relationship between IHL and human rights law where it matters: admissible killing and internment of fighters in non international armed conflict,” International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 603–605; Marco Sassòli, “Le DIH, une lex specialis par rapport aux droit humains?,” in Andreas Auer, Alexandre Flückiger, Michel Hottelier (eds.), Les droits de l’homme et la constitution, Etudes en l’honneur du Professeur Giorgio Malinverni, Schulthess, Genève, 2007, pp. 375–395.  Hans-Joachim Heintze, On the Relationship Between Human Rights Law Protection and IHL, op. cit., p. 795. Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, pp. 193–231; Christopher Greenwood, “Rights at the Frontier: Protecting the Individual in Time of War,” in Barry A. K. Rider (ed.), Law at the Centre: The Institute of Advanced Legal Studies at Fifty, Kluwer, Dordrecht, 1999, p. 288. See also the statement of Louise DoswaldBeck at the Chatham House Conference presenting the ICRC Study: Chatham House, The Law of Armed Conflict: Problems and Prospects, Chatham House, 18–19 April 2005, Transcripts and Summaries of Presentations and Discussions, op. cit., p. 48. Heike Krieger, “A Conflict of Norms: The Relationship Between IHL and Human Rights Law in the ICRC Customary Law Study,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 265–291. As mentioned before, the reasons of this choice are that the status and rights of NGOs have been widely treated by the literature, mostly from the human rights point of view. But there is a lack of analysis of the strictly IHL provisions. Common Article 2 to the Geneva Conventions of 1949 states that: “In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply

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is a conflict in which either the government in place or a third State formally recognises the rebels as belligerents. The third category includes wars of selfdetermination.51 The fourth category is concerned with foreign intervention in an internal armed conflict.52 In the Tadic case, the ICTY stated that there are two ways by which an internal conflict can become international: a) if another State’s troops intervene in that conflict, or b) if some of the participants in the internal armed conflict act on behalf of that other State.53 The Tribunal also concluded that “an [international] armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.”54 All of the provisions of the Hague and Geneva Conventions (apart from common Article 3) and Additional Protocol I apply in international armed conflict. Five IHL provisions/treaties refer to a definition of non-international armed conflicts.55 However, the Geneva Conventions, Additional Protocol II, and the Rome Statute have three distinct definitions of internal armed conflict.

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” 51 Additional Protocol I, art. 1, para. 4: “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” 52 Such foreign intervention can range from bringing economic or logistic aid, to delivery of arms, or to the sending of foreign troops to help either the legitimate government or the rebels. See the Nicaragua case and for a full review of the definition of an internationalised armed conflict, see James G. Stewart, “Towards a Single Definition of Armed Conflict in IHL: A Critique of Internationalized Armed Conflict,” International Review of the Red Cross, No. 850, pp. 313–350. 53 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 84. 54 ICTY, The Prosecutor v. Dusko Tadic, Ibid., para. 70. 55 Common Article 3 of the 1949 Geneva Conventions; 1977 Additional Protocol II; Article 19 of the 1954 the Hague Convention for the Protection of Cultural Property; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II to the 1980 Convention); Article 8.2 c–f of the ICC Statute.

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Common Article 3 refers only to an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”56 To distinguish an armed conflict, as defined in common Article 3, from less serious forms of violence, the situation must reach a certain threshold of confrontation.57 Two criteria are usually used in this regard:58 the hostilities must reach a minimum level of intensity, and non-governmental groups involved in the conflict must possess organised armed forces. Such forces must be under a certain command structure and have the capacity to sustain military operations.59 In Protocol II, States agreed to a more precise definition of internal armed conflict. However, this definition proved to be more restrictive, in two respects, than that of common Article 3:60 Protocol II introduces a requirement of territorial control by the non-governmental parties that enables them to undertake military operations;61 and, contrary to common Article 3, the Second 56

As the four Geneva Conventions have almost universally been ratified now, the requirement that the armed conflict must occur “in the territory of one of the High Contracting Parties” has lost its importance in practise. 57 According to the Commentary on Article 3 common, for an “armed conflict not of an international character” to exist, the following criteria should apply: (1) That the rebels possess an organised military force, an authority responsible for its acts, are in possession of a part of the national territory and have the means of respecting the Convention. (2) That the legal Government is obliged to have recourse to the regular military forces against insurgents. (3) That the de jure Government has recognised the insurgents as belligerents or that the dispute has been admitted to the agenda of the Security Council or the General Assembly as being a threat to international peace or an act of aggression. (4) That the insurgents have an organisation purporting to have the characteristics of a State, exercise de facto authority over persons within a determinate territory and that the armed forces and insurgents agree to be bound by the Convention’s provisions: Commentary Article 3 common, pp. 49–50. 58 ICTY, The Prosecutor v. Dusko Tadic, Judgement, IT-94-1-T, 7 May, 1997, paras. 561–568; see also ICTY, The Prosecutor v. Fatmir Limaj, Judgement, IT-03-66-T, 30 November, 2005, para. 84. 59 For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, Judgement, op. cit., paras. 94–134. 60 Article 1(1) of Protocol II defines such conflict as a conflict which “take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercize such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” 61 Nothing is stated, however, about the amount of territory the rebels should control, nor for how long: Eve La Haye, War Crimes in Internal Armed Conflicts, Cambridge University Press, Cambridge, 2008, p. 10.

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Additional Protocol does not explicitly apply to armed conflicts occurring between only non-State armed groups. The high intensity threshold under Protocol II is, therefore, extremely restrictive for modern situations.62 However, Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application,”63 which means that this restrictive definition is relevant only to the application of Protocol II. At the Rome Conference, delegations adopted a broader definition than that of Protocol II. The Rome Conference’s definition is similar to that proposed in common Article 364 and draws upon the 1995 appellate decision of the International Criminal Tribunal of the former Yugoslavia (ICTY) in the Tadic case. There, the Tribunal stated that the rules of common Article 3 apply “in the whole territory under control of a party whether or not actual combat takes place.”65 In other cases, the ICTY further interpreted the criteria defining an internal armed conflict, concentrating on the organised nature of the rebel groups and the duration and intensity of the conflict.66 To assess the intensity of the conflict, the Tribunal examined the seriousness and recurrence of attacks,67 62

Hernan Salinas Burgos, “The Application of IHL as Compared to Human Rights Law in Situations Qualified as Internal Armed Conflict, Internal Disturbances and Tensions, or Public Emergency, with Special Reference to War Crimes and Political Crimes,” op. cit., p. 9; Costas Kombos and Maria Hadjisolomou, “The Traditional Distinction Between International and Internal Armed Conflict: Legal Artefact or Legal Fact,” Mediterranean Journal of Human Rights, Vol. 10, No. 2, 2006, p. 144. 63 Article 1 of Additional Protocol II. 64 The ICC Statute contains this definition of armed conflict in its Article 8(2).f: “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.” 65 Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 70. 66 ICTY, Prosecutor v. Dusko Tadic, Judgement, op. cit., paras. 561–568; Prosecutor v. Zlatko Aleksovski, Judgement, Case No. IT-95-14/1-A, 25 June 1999, paras. 43–44 ; Prosecutor v. Goran Jelisic, Judgement, Case No. IT-95-10-A, 5 July 2001, paras. 29–31; Prosecutor v. Anto Furundzija, Judgement, Case No. IT-95-17/1-T, 10 December 1998, para. 59; Prosecutor v. Dario Kordic and Mario Cerkez, Judgement, Case No. IT-95-14/2-T, 26 February 2001, paras. 22–31; Prosecutor v. Kunarac, Kovac and Vukovic, Judgement, Case No. IT-96-23-T& IT-9623/1-T, 22 February 2001, paras. 402 and 567–569; Prosecutor v. Zejnil Delalic, Zdravko Mucic and Hazim Delic, Case No. IT-96-21-T, 16 November 1998, paras. 183–192; Prosecutor v. Milomir Stakic, Judgement, Case No. IT-97-24-T, 31 July 2003, paras. 566–574; Prosecutor v. Fatmir Limaj, Judgement, op. cit., paras. 83–174. 67 Prosecutor v. Dusko Tadic, Judgement, op. cit., para. 565; Prosecutor v. Dario Kordic and Mario Cerkez, op. cit., para. 29; Prosecutor v. Zejnil Delalic, Zdravko Mucic and Hazim Delic,

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the spread of these armed clashes over territories and time,68 whether various parties were able to operate from a territory under their control,69 an increase in the number of government forces, the distribution of weapons among parties to the conflict,70 the flight of civilians from the countryside,71 and the resolutions passed by the UN Security Council. To assess the organisation of the parties to the conflict, the Tribunal examined the existence of a command structure, headquarters, zones of operation, and the ability to carry out military operations, including the ability to procure, transport, and distribute arms.72 In the Limaj case, the ICTY rejected two criteria mentioned in Article 1 of Protocol II: whether the insurgents have a State-like organisation and authority to observe the rules of war, and if they are sufficiently organised to carry out continuous and persistent military operations and to impose discipline on their troops.73 And in the Haradinaj et al. case, the Tribunal took into account military training, use of guerrilla tactics, and the fact that the group issues communiqués in its name for the qualification as an “organized armed group.”74 The International Criminal Tribunal for Rwanda uses the same test as the ICTY to evaluate the intensity of a given conflict and the organisation of the parties involved.75

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op. cit., paras. 186–189; Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj (Haradinaj et al.), Judgement, 3 April, 2008, Case No. IT-04-84-T, paras. 49 and 99. Prosecutor v. Dusko Tadic, Judgement, op. cit., paras. 566 and 568; Prosecutor v. Dario Kordic and Mario Cerkez, op. cit., para. 30; Prosecutor v. Kunarac, Kovac and Vukovic, op. cit., para. 567; Prosecutor v. Zejnil Delalic, Zdravko Mucic and Hazim Delic, op. cit., para. 186; Prosecutor v. Milomir Stakic, op. cit., para. 572. Prosecutor v. Zejnil Delalic, Zdravko Mucic and Hazim Delic, op. cit., para. 187. Prosecutor v. Zejnil Delalic, Zdravko Mucic and Hazim Delic, op. cit., para. 188. Haradinaj et al., paras. 49 and 99. Prosecutor v. Slobodan Milosevic, Decision on Motion for Judgement of Acquittal, Case No. IT-02-54-T, 16 June 2004, paras. 23-24; Haradinaj et al., op. cit., para. 60. The Trial Chamber stated, “Some degree of organization by the parties will suffice to establish the existence of an armed conflict:” Prosecutor v. Fatmir Limaj, Judgement, op. cit., para. 85 and 89. Haradinaj et al., op. cit., para. 89. International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Trial Judgement, Case No. ICTR-96-4-T, 2 September 1998, paras. 619–626; Prosecutor v. Clément Kayishema and Obed Ruzindana, Trial Judgement, Case No. ICTR-95-1-T, 21 May 1999, para. 170; Prosecutor v. Alfred Musema, Judgement and Sentence, Case No. ICTR-9613-T, 27 January 2000, para. 250; Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Judgement and Sentence, Case No. ICTR-96-3-T, 6 December 1999, paras. 92–93; Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, Judgement and Sentence, Case No. ICTR-99-46-T, 25 February 2004, para. 767; Le procureur c. Laurent

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Therefore, non-international armed conflicts are armed confrontations between governmental armed forces and the forces of one or more armed groups or between such groups arising on the territory of a State party to the Conventions including a foreign State. This definition takes into account the new concept of “transnational armed conflicts.”76 3.2 The Relevance of the Distinction A number of scholars argue that the distinction between the two types of conflict is vague at best, due mainly to the ICTY’s decision in the Tadic case. The ICTY stated that the practical nature of modern armed conflict has rendered the legal distinction between types of armed conflict more and more blurred.77 In particular, the Tribunal stated that there are compelling humanitarian reasons for reducing, if not eliminating, such distinctions.78 In light of the evolution of human rights, the Chamber found that the distinction between both types of conflicts was “losing its value” in relation to human beings.79 The

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Semanza, Jugement et sentence, Case No. ICTR-97-20-T, 15 May 2003, paras. 355 and 514; The Prosecutor v. Ignace Bagilishema, Trial Judgement, Case No. ICTR-95-1A-T, 7 June 2001, paras. 99–101. Transnational armed conflicts are conflicts between States and non-State groups outside the territory of the State. Where a non-State armed group is engaged in protracted armed violence with a State and is operating from across an international border, the prevailing view is that this is a non-international armed conflict. Where, however, a State is party to such a non-international armed conflict and conducts military operations in a second State on whose territory the non-State armed group is present, views differ as to the legal consequences. One view is that if attacks by the outside State are limited to the nonState armed group and its associated military infrastructure, this does not change the status of the conflict. If, though, attacks are made more broadly on the infrastructure of the State on whose territory the non-State armed group is present, this transforms the entire conflict into an international one. Another view is that the determinant factor is whether the second State has given its consent to the military intervention. In this case, the conflict remains one of a non-international character. Where, however, the State opposes this intervention, or at least condemns it, this results in an armed conflict of an international character between the two States simultaneous and in addition to the non-international armed conflict between the first State and the non-State armed group. Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 97. Ibid., paras. 97 and 119. “In the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or

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Tribunal noted, “What is inhumane, and consequently proscribed in international wars, cannot but be inhumane and inadmissible in civil strife.”80 The Chamber also stated that there was a body of customary laws being developed that applies to internal armed conflicts and consists of rules protecting civilians81 that ensure avoidance of unnecessary harm and the regulation of means and methods of warfare.82 These customary rules are similar to the protection afforded under the Geneva Convention for international armed conflict and successfully bridge the gap in substantive protection. Finally, the ICTY stated that State practise was beginning to undermine the traditional separation of types of armed conflict.83 However, this conclusion was amended by the Chamber when it was stated that only a limited number of rules applying to international conflicts have gradually been extended to internal conflict, and that the extension has not taken place in the form of a full and mechanical transplant.84 The decision in the Tadic case revived the debate in the academic literature about the distinction between the two types of conflict. Lauterpacht argued, even before the adoption of the Geneva Conventions, for the universal application of the law in armed conflict.85 In 1948, the ICRC presented a report recommending that the Geneva Conventions apply to all cases of armed conflict.86

80 81 82 83 84

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providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight:” Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 97. Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 119. Ibid., para. 119. Ibid., paras. 96–127. Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 132. “This extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts:” Prosecutor v. Dusko Tadic, case No. IT-94-1-AR72, op. cit., para. 126. “A clearly ascertained state of hostilities on a sufficiently large scale, willed as war at least by one of the parties, creates suo vigore a condition in which the rules of warfare become operative . . . once a situation has been created which, but for the constitutional law of the State concerned, is indistinguishable from war, practise suggests that international law ought to step in order to fulfil the same function which it performs in wars between sovereign States, namely, to humanise and regularise the conduct of hostilities as between the parties:” Hersch Lauterpacht, Recognition in International Law, Cambridge University Press, Cambridge, 1947, p. 246. Commentary Article 3 of the Third Geneva Convention, p. 31.

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Bassiouni and Manikas87 note that academic writers and NGOs have also cited the need for a more universal applicability of law in armed conflict, calling for a closer alliance between human rights, IHL, and refugee law, as well as the creation of minimum humanitarian standards uniformly applicable in all armed conflict.88 After the Tadic decision, a number of academics argued that the regulation for the two types of armed conflict is arbitrary and/or undesirable.89 Others also suggest that customary international law has

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“The evolution of the law illustrates the growing tendency to apply basic humanitarian norms regardless of whether the individuals to be protected are combatants or noncombatants, or whether the conflict is essentially international or intra-State. Increasingly, factors such as the level of violence, the threat to regional and international stability and the importance of the international humanitarian norm to be protected trigger international humanitarian interventions. If the international community is to take effective action in such situations, new operating definitions of international and non-international conflicts are needed:” Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Transnational Publishers, Irvington-on-Hudson, 1996, p. 479. Emily Crawford, “Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts,” Leiden Journal of International Law, Vol. 20, 2007, p. 462; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” German Law Journal, Vol. 6, 2005, p. 1230; Yves Sandoz, “Foreword,” in Customary IHL, Vol. I, ICRC, Geneva, 2005, p. xvi. See René-Jean Dupuy and A. Leonetti “La notion de conflit armé à caractère non international” in Antonio Cassese (ed.), The New IHL of Armed Conflict, Editoriale scientifica, Naples, 1971, p. 258; George Aldrich, “The Laws of War on Land,” American Journal of International Law, Vol. 94, 2000, p. 62; W. Michael Reisman and J. Silk, “Which Law Applies to the Afghan Conflict?,” American Journal of International Law, Vol. 82, 1988 p. 465; C. Warbrick and P. Rowe, “The International Criminal Tribunal for Yugoslavia: The decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadi’c Case,” International & Comparative Law Quarterly, Vol. 45, 1996, p. 698; James G. Stewart, “Towards a Single Definition of Armed Conflict in IHL: A Critique of Internationalized Armed Conflict,” International Review of the Red Cross, No. 850, p. 350; Emily Crawford, “Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts,” op. cit., p. 450; W. Michael Reisman, “Application of IHL in Non-international Armed Conflicts: Remarks by W. Michael Reisman,” American Journal of International Law, Vol. 85, 1991, p. 90; Ingrid Detter, The Law of War, Cambridge University Press, Cambridge, 2003, p. 49; Sonja Boelaert-Suominen, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?,” Journal of Conflict and Security Law, Vol. 5, No. 63, 2000, section 5.

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developed to a point where the gap between the two regimes is less obvious.90 The ICRC study regarding rules of customary IHL, for example, points out that many of the rules are applicable to both conflicts.91 Indeed, part of the practise is consistent with this interpretation. Most military manuals do not explicitly distinguish between the rules applicable in both conflicts. Some armed forces, however, now recognize that the same rules of IHL should be applicable in all situations involving armed conflict.92 National legislation93 and judicial reasoning94 also show that States are not always respecting the distinction between the two types of conflict. This tendency is also reflected in United Nations documents. For example, the UN SecretaryGeneral’s Bulletin for Peacekeeping Forces does not distinguish between

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Sonja Boelaert-Suominen, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?,” op. cit., section 5; Jean-Marie Henckaerts, “The conduct of hostilities: Target selection, proportionality and precautionary measures under IHL,” in The Netherlands Red Cross, Protecting Civilians in 21st-Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice, 8 December 2000, p. 11. “The ICRC study suggests that, where gaps exist in Protocol II, State practice has filled in these gaps, creating rules that are parallel to those contained in Protocol I. In fact, of the 161 customary rules of IHL as determined by the ICRC study, 17 are solely applicable in international armed conflicts, and only six are solely applicable in non-international armed conflicts:” Emily Crawford, “Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts,” op. cit., p. 456. An instruction issued by the chairman of the U.S. Joint Chiefs of Staff states that the “Armed Forces of the United States will comply with the law of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterized:” Chairman, Joint Chiefs of Staff, Instruction 5810.01, Implementation of the DOD Law of War Program (1996), cited in Theodor Meron, “The Humanization of IHL,” American Journal of International Law, Vol. 94, April 2000, p. 261. See Belgian Law of 16 June 1993 concerning repression of grave breaches of the Geneva Conventions and Additional Protocol; Spanish Codigo Penal Law 10/1995 of 23 November 1995; Finish Chapter 11 of the Revised Penal Code Dealing with War Crimes and Crimes Against Humanity of 21 April 1995; Article 6 of the United States War Crimes Act 1996; The Dutch Law of War Crimes 1952; Chapter 22, Section 11, of the Swedish Penal Code, 1986; Swiss Code Pénal Militaire, Federal Law of 13 June 1927; all cited in Sonja BoelaertSuominen, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?,” op. cit., section 4.3.1. See Sonja Boelaert-Suominen, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?,” op. cit., section 4.3.2.

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the types of IHL provisions that UN peacekeeping forces should observe.95 During the late 1960s, the UN General Assembly passed two resolutions that affirmed the need to ensure uniform and basic rules in armed conflict, regardless of the character of the conflict.96 Finally, the UN has established fundamental standards of humanity applicable in both peaceful situations and in armed conflict.97 Treaty law also reflects this trend.98 Nonetheless, it is difficult to argue that the distinction between the two types of conflict no longer exists. Indeed, Georges Abi-Saab noted that State practise has not always been consistent and in favour of the elimination of the distinction.99 There is no widespread adoption of national legislation that 95

The Bulletin’s field of application, as outlined in Section I.I, simply determines that “the fundamental principles and rules of IHL set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict that are actively engaged therein as combatants, to the extend and for the duration of their engagement.” See UN Secretary-General, Observance by UN Forces of IHL, 6 August 1999, UN Doc.No.ST/ SGB/1999/13, 1999. 96 See General Assembly, Res. 2444, UN Doc. A/7218, 1968 and Res. 2675, UN Doc.A/8028, 1970. These resolutions were noted by the Appeals Court in Tadic as being demonstrative of the international community’s expectance of both the application of and compliance with certain universal rules in armed conflicts, regardless of characterisation. 97 See Secretary-General, Promotion and Protection of Human Rights—Fundamental Standards of Humanity, UN Doc. E/CN.4/2002/103, 20 December 2001, para. 41. 98 Limitations in the regulations regarding methods of war are increasingly being applied to internal armed conflicts governed by common Article 3, such as the rules in the revised Protocol II to the 1980 Convention on Certain Conventional Weapons dealing with mines, booby traps, and other devices. In addition, the Amended Protocol II of 1996 to the 1980 United Nations Weapons Convention, the 1997 Ottawa Convention on the Prohibition of Anti-personnel Mines, the Convention on bacteriological and toxin weapons, the Convention on chemical weapons and the 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict all apply equally to international and non-international armed conflicts. Finally, the codification in the ICC Statute of the principles that crimes against humanity can be committed in all situations, without regard to the thresholds of armed conflicts, and that they can be committed not only in furtherance of State policy, but also in furtherance of the policy of non-State entities, follows this trend. 99 “This legally radical separation of internal wars from the international level, was not . . . as rigorously observed in practice as it sounded in theory. One can cite numerous instances, both before, and particularly after the Napoleonic wars, of intervention by major European powers against democratic uprisings in Europe, not to speak of their increasing interest in conflicts arising in different parts of the Ottoman Empire, and in their extra-European spheres of influence as a prelude to their formal colonization; or of the intervention of the United States in the frequent internal upheavals in Latin America:”

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completely removes the distinction,100 and the ICTY decided not to argue that grave breaches could be committed in non-international armed conflict.101 Certainly, this remains a significant distinction between both types of armed conflict.102 Similarly, the Statute of the International Criminal Court preserves the distinction between internal and international armed conflict by providing 34 incriminations for the grave breaches of international armed conflict,103 and against 16 of those made in civil war.104 Moreover, while most of the academic literature agrees that the inequality in applicability of laws relating to armed conflict is an undesirable condition, few academics suggest that the laws be universally applied.105 Others state that the ICTY Appeals Chamber decision in the Tadic case might have been over-inclusive.106 There is a risk that standards of protection might be reduced if such universal applicability was to be adopted, as States would always seek to preserve their sovereignty over safeguarding the rights of their nationals.107 While still recognising that customary law filled a number of gaps in the applicability of IHL, the distinction between both types of armed conflict is

100

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103 104 105

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Georges Abi-Saab, “Non-International Armed Conflicts,” in Henry Dunant Institute and UNESCO (eds.), International Dimensions of IHL, Henry Dunant Institute/UNESCO/ Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1988, p. 217. Costas Kombos and Maria Hadjisolomou, “The Traditional Distinction between International and Internal Armed Conflict: Legal Artefact or Legal Fact,” Mediterranean Journal of Human Rights, Vol. 10, No. 2, 2006, p. 153. Also the Rwandan Tribunal’s Statute does not include ‘grave breaches of the Geneva Conventions’ as crimes within its jurisdiction as from the outset the situation in Rwanda was seen as an internal armed conflict. Unlike the ICTR, the ICTY was granted jurisdiction over grave breaches under Article 2 of its Statute. Judge Abi-Saab, in his separate opinion, did argue that grave breaches could be committed in non-international armed conflicts. He argued that “a strong case can be made for the application of Article 2 [of the ICTY Statute], even when the incriminated act takes place in an internal conflict: see Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, p. 2. Articles 8.2 a–b of the Statute. Articles 8.2 c and e of the Statute. Zegveld argues that ‘while there is . . . a clear trend in international practice to diminish the distinction between IHL for international as opposed to for internal conflicts, the distinction between these conflicts has not been abolished:’ Liesbeth Zegveld, Accountability Of Armed Opposition Groups In International Law, Cambridge University Press, Cambridge, 2002, p. 35. Peter Rowe, “The International Criminal for Yugoslavia: the Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic case,” International Comparative Law Quarterly, Vol. 45, 1996, pp. 691–701. Marco Sassòli and Laura M. Olson, “The Judgment of the ICTY Appeals Chamber on the Merits in the Tadic case, New horizons for International Humanitarian and Criminal Law?,” International Review of the Red Cross, No. 839, p. 746.

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still valid as it is strongly entrenched in IHL treaties and State practise is not uniform in blurring the distinction. This distinction should therefore be taken into account when reviewing the legal status of NGOs operating in armed conflict. 4

Customary International Law and General Principles

Different views exist in the academic literature regarding the sources of international law.108 Most international lawyers rely on the articulation of sources in Article 38 of the Statute of the International Court of Justice, but do not agree on the content of these sources.109 For example, the publication of the ICRC Study on Customary International Humanitarian Law has been followed by a large number of articles criticising the methodology of the authors of the study and the sources of customary law, which it utilises.110 108 For a summary of all these views, see Duncan B. Hollis, “Why State Consent Still Matters— Non-State Actors, Treaties, and the Changing Sources of International Law,” Berkeley Journal of International Law, No. 23, 2005, pp. 137–173. 109 Article 38(1) of the Statute of the ICJ provides that “the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting States; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” 110 See for example Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” in Timothy L. H. McCormack and Avril McDonald (eds.), Yearbook of International Humanitarian Law, Vol. 8, T.M.C. Asser Press, The Hague, 2005, pp. 143–178; Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” Israeli Yearbook on Human Rights, Vol. 36, 2006, pp. 1–16; Michael Cowling, “International Lawmaking in Action—The ICRC Customary International Humanitarian Law Study and Non-International Armed Conflicts,” African Yearbook on International Humanitarian Law, 2006, pp. 65–87; Robert Cryer, “Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 239–263; Heike Krieger, “A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 265–291; Peter Rowe, “The Effect on National Law of the Customary International Humanitarian Law Study,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 165–178 ; Dieter Fleck, “International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 179–200; Jan Wouters and Cedric Ryngaert, “The Impact of Human Rights and International Humanitarian Law on the Process of the Formation

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This section briefly addresses the definitions and sources of customary law, which will be of relevance when examining the customary rights of NGOs in armed conflicts in Chapter 5. Definitions and Sources of Customary Law, Jus Cogens and Erga Omnes 4.1.1 Customary Law Article 38(1) of the Statute of the International Court of Justice describes international custom “as evidence of a general practice accepted as law.” Custom 4.1

of Customary International Law,” Institute for International Law, Working Paper No. 121, February 2008, pp. 3–21; George H. Aldrich, “Customary International Humanitarian Law—An Interpretation on Behalf of the ICRC,” British Yearbook of International Law, 2005, pp. 503–524; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” German Law Journal, Vol. 6, 2005, pp. 1217–1242; John B. III Bellinger and William J. II Haynes, “A US government response to the ICRC study Customary International Humanitarian Law,” International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 443–471; Jean-Marie Henckaerts, “Customary International Humanitarian Law: a response to US comments,” International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 473–488; Chatham House, The Law of Armed Conflict: Problems and Prospects, Chatham House, 18–19 April 2005, Transcripts and summaries of presentations and discussions, op. cit., pp. 1–84; Larry Maybee and Benarji Chakka, Custom as a Source of International Humanitarian Law, Proceedings of the Conference to Mark the Publication of the ICRC Study “Customary International Humanitarian Law” held in New Delhi, 8–9 December 2005, ICRC/Asian African Legal Consultative Organisation, New Delhi, 2006, pp. 1–314; Leah M., Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” Duke Journal of Comparative and International Law, Vol. 17, 2006–2007, pp. 223–252; Paul Tavernier, “De l’utilité de l’étude du CICR sur le droit international humanitaire coutumier,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, Bruylant, Bruxelles, 2008, pp. 17–24; Jean-Luc Florent, “Opposabilité de l’étude du CICR sur le droit international humanitaire coutumier aux Etats,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 75–80; Eric David, “Opposabilité du droit international humanitaire coutumier aux acteurs non étatiques,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 81–88; Francoise Bouchet-Saulnier, “Coutume: espace de création et d’activisme pour le juge et pour les organisations non gouvernementales,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 161–178; Francois Bugnion, “Le droit international humanitaire coutumier et les conflits armés non internationaux,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 179–190.

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is generally considered to have two elements: State practise and opinio juris.111 Usually, State practise refers to general and consistent practise by States, while opinio juris means that the practise is followed out of a belief of legal obligation.112 However, what really constitutes State practise or opinio juris is controversial. Two main schools of thought have evolved on customary law. First, the ‘traditional’ custom results from a uniform, general, and consistent practise followed by States out of a sense of legal obligation, the opinio juris.113 The test focuses on what a State does in actual practise and opinio juris is a secondary consideration.114 Second, “modern” (or “new,”115 “contemporary,”116 “instant”117 custom is determined through a deductive process emphasising opinio juris rather than State practise.118 Modern custom can develop quickly because it is 111 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), 1969 ICJ Reports, p. 44, para. 77; Asylum case, ICJ Reports 1950, p. 276; Fisheries case, ICJ Reports 1951, p. 139; Rights of US Nationals in Morocco, ICJ Reports 1952, p. 200; Right of Passage, ICJ Reports 1960, p. 40; Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, p. 29, para. 27. 112 Restatement (Third) of the Foreign Relations Law of the United States, 1987, para. 102(2); Ian Brownlie, Principles of Public International Law, fifth edition, op. cit., pp. 4–11; Michael Byers, Custom, Power, and the Power of Rules, Cambridge University Press, Cambridge, 1999, p. 130; Anthony A. D’Amato, The Concept of Custom in International Law, Cornell University Press, New York, 1971, p. 49; Jack L. Goldsmith and Eric A. Posner, “Notes Toward A Theory of Customary International Law,” American Society of International Law Proceedings, Vol. 92, 1998, p. 53. 113 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), 1984 ICJ Reports, p. 299; Oscar Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, Dordrecht, 1991, pp. 35–36; Georg Schwarzenberger, “The Inductive Approach to International Law,” Harvard Law Review, Vol. 60, 1947, pp. 566–570. 114 North Sea Continental Shelf, 1969 ICJ Reports, p. 44; Right of Passage over Indian Territory (Portugal v. India), Merits, 1960 ICJ Reports, pp. 42–43; Asylum (Colombia v. Peru), 1950 ICJ Reports, pp. 276–77; The Lotus Case; France v Turkey (1927) PCIJ Series A, No. 10, p. 28. 115 Curtis A. Bradley and Jack L. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” Harvard Law Review, Vol. 110, 1997, p. 838; Patrick J. Kelly, “The Twilight of Customary International Law,” Virginia Journal of International Law, Vol. 40, 2000, p. 484. 116 Ted Stein, “Remarks [on customs and treaties],” in Antonio Cassese and Joseph H. H. Weiler (eds.), Change and Stability in International Law-Making, Walter de Gruyter, Berlin, 1988, p. 12. 117 Bin Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?,” Indian Journal of International Law, Vol. 5, 1965, pp. 23–112. 118 Bruno Simma and Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles,” Australian Yearbook of International Law, Vol. 12, 1992, p. 82. See also Georges Abi-Saab, “La coutume dans tous ses états,” dans Le droit ­international

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deduced from multilateral treaties and declarations by international fora such as the General Assembly.119 Indeed, judicial decisions after the Second World War show a clear trend toward disregarding State practise. The ICJ in particular followed this approach in the Nicaragua case,120 in Democratic Republic of the Congo v. Belgium,121 in other case law,122 and in its recent advisory opinion on the Wall.123 The ICTY disregarded State practise as well.124 Similarly, without à l’heure de sa codification, Etudes en l’honneur de Roberto Ago, Giuffre, Milano, 1987, pp. 53–66; Georges Abi-Saab, “The Development of International Law by the United Nations,” Revue égyptienne de droit international, Vol. 24, 1968, pp. 95–103; René-Jean Dupuy, “Coutume sage et coutume sauvage,” dans La communauté internationale: Mélanges offerts à Charles Rousseau, Pédone, Paris, 1974, pp. 75–87. 119 North Sea Continental Shelf, 1969 ICJ reports, p. 44; Eduardo Jimenez de Aréchaga, “Remarks [on general principles and General Assembly resolutions],” in Antonio Cassese and Joseph H. H. Weiler (eds.), Change and Stability in International Law-Making, W. De Gruyter, Berlin, 1988, p. 48; Anthea Elizabeth Roberts, “Traditional and Modern Approaches to Customary Interna­tional Law: A Reconciliation,” American Journal of International Law, Vol. 95, 2001, pp. 757–758. 120 In Nicaragua, the Court has decided to treat words as more significant than actions of a State, because if the two are inconsistent, words would prevail: “If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule:” Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), Merits, 1986, ICJ Reports, p. 98, para. 186. 121 The ICJ defined customary law after stating to have carefully considered state practise, national legislations and court decisions, without giving any example of that practise: Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, 2002 ICJ Reports, p. 3, para. 52. 122 Oil Platforms (Iran v. United States), 2003 ICJ Reports, p. 803, para. 42; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports, p. 226, para. 79. 123 Here the Court asserted that there is a customary international rule providing for the illegality of territorial acquisition resulting from the threat or use of force, without showing any kind of State practise: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 87. The Court further assumed a customary rule on the duty to make reparations based solely on a judgement by the PCIJ: see para. 152. 124 See for example the Galić case, where the ICTY had convicted General Galić for the crime of terror as a crime under Article 3 of the ICTY Statute. The demonstration of the ICTY was in three parts: first, a showing that in 1977, the cited provisions in the Protocols had been accepted by consensus; secondly, earlier occasions when States had expressed the view that terror was unacceptable; and thirdly, the large number of States Parties to the

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discussing the customary process, the Nuremberg Judgement recognised that the 1907 Hague Regulations on Land Warfare were part of customary law.125 The difference between both approaches of customary law has spurred considerable discussion.126 In sum, one of the main criticisms of traditional custom is that it lacks democratic legitimacy. By contrast, modern custom is criticized for producing norms that are divorced from reality.127 Consequently, there have been numerous debates among scholars as to which forms of State practise and opinio juris are acceptable proofs of customary law. State Practise All international jurists accept that conscious acts or abstentions of States qualify as State practise. Decisions of domestic courts are recognised as relevant forms of practise.128 The decisions of international courts and human rights courts do not constitute State practise, but constitute persuasive

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Protocols and a statement by the United States of America, not a Party to the Protocols, that it supported the prohibition of terror against the civilian population. In fact, the evidence reflects opinio juris, not practise: Prosecutor v. Galić, Case No. IT-98-29-A, ICTY Appeals Chamber, Judgement of 30 November 2006, paras. 87–89. However, in 2003 in case Hadzihasanovic, the Appeals Chamber stated that “to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris” and that “it is the task of a court to interpret the underlying State practice and opinio juris:” Prosecutor v. Hadzihasanovic, IT-0147-AR72, 16 July 2003, para. 12. Judgement of the International Military Tribunal for the Trial of the German Major War Criminals, Nuremberg, 30th September and 1st October 1946, London, HMSO, 1946, Cmd. 6964, Misc. No. 12, p. 65, cited in Theodor Meron, “The Geneva Conventions as Customary Law,” American Journal of International Law, Vol. 81, 1987, p. 359. See, for example, the conflicting responses to the Nicaragua case in “Symposium, Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits),” American Journal of International Law, Vol. 81, 1987. Anthea Elizabeth Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation,” op. cit., p. 767. Hersch Lauterpacht, “Decisions of Municipal Courts as Sources of International Law,” British Yearbook of International Law, Vol. 10, 1929, pp. 65–95; Filártiga v. Peña-Irala, 630 F.2d 876, Second Circle, No. 79-6090, 30 June 1980; The Supreme Court of the United States, The Paquete Habana, 175 U.S. 677, 1900; Maxwell O. Chibundu, “Making Customary International Law Through Municipal Adjudication: A Structural Inquiry,” Virginia Journal of International Law, Vol. 39, 1998–1999, pp. 1069–1150.

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evidence to that effect.129 Most jurists also agree that entry into binding agreements similarly constitutes State practise.130 However, there is controversy concerning other categories of State practise. The use of the resolutions of international organisations has at times been contested,131 but it is generally considered that the negotiation and adoption of resolutions are acts of the States involved in the conferences.132 However, resolutions are normally not binding in themselves and therefore the value accorded to any particular resolution depends on its content, its degree of

129 “While some of the cases listed are only marginally relevant for IHL, others are indeed crucial. This shows the recognition of the parallel application of humanitarian and human rights law in times of armed conflict—which is well reflected through the Study. This constitutes yet another element of the dynamic development of customary humanitarian law, for the simple reason that it provides for additional remedies and thereby for additional case law:” Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” in Timothy L.H. McCormack and Avril McDonald (eds.), Yearbook of International Humanitarian Law, 2005, op. cit., p. 159. 130 Anthony D’Amato, “Treaties as a Source of General Rules of International Law,” Harvard International Law Journal, Vol. 3, 1962, pp. 1–43; Richard R. Baxter, “Multilateral Treaties as Evidence of Customary International Law,” British Yearbook of International Law, Vol. 41, 1965, pp. 275–300; Ibrahim Shihata, “The Treaty as a Law-Declaring and Custom-Making Instrument,” Egyptian Review of International Law, Vol. 22, 1966, pp. 51–75; Ian Brownlie, Principles of Public International Law, op. cit., pp. 5–6; Richard R. Baxter, “Treaties and Custom,” RCADI, Vol. 129, 1970-I, pp. 43 and 52; Restatement of the Foreign Relations Law of the United States (Third), 1987, section 102; Theodor Meron, “The Geneva Conventions as Customary Law,” op. cit., p. 361. 131 For part of the literature, resolutions adopted by international organisations, if they form part of the practise of the organisation, belong more to the manifestation of the opinio juris than state practise in ascertaining a customary rule: Alain Pellet, “Article 38,” in Andreas Zimmermann, Christian Tomuschat and Karien Oellers-Frahm (eds.), The Statute of the International Court of Justice, A Commentary, Oxford University Press, Oxford, 2006, p. 752. In addition, the United States stated that States may lend their support to a particular resolution, or determine not to break consensus in regard to such a resolution, for reasons having nothing to do with a belief that the propositions in it reflect customary international law: John B. Bellinger III and William J. Haynes II, “A US government response to the ICRC Study on Customary International Humanitarian Law,” International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 444–446. 132 Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” Israeli Yearbook on Human Rights, Vol. 36, 2006, p. 4. In addition, pronouncements of international organisations are the proof that international organisations are “actors which actually apply the relevant law:” Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” op. cit., pp. 159–160.

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acceptance, and the consistency of related State practise.133 Military manuals are also generally accepted as an important source for determining customary law.134 Other States’ statements can be included in official correspondence,135 or made at meetings, and conferences.136 It has sometimes been considered that the practise of non-State actors is relevant as well, in particular for NGOs.137 133 The importance of these conditions was stressed by the International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, pp. 254–255, paras. 70–73. 134 Most academics agreed on the use of military manuals in the ICRC Study on Customary International Humanitarian Law. Some scholars have contested the validity of certain references to national manuals, but not on the principle. See for example Yoram Dinstein, who mentioned that some references to the 1998 Israeli Manual on the Laws of War in the ICRC Study were inaccurate and that this manual is not a genuine one: Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” op. cit., pp. 6–7. Only the United States have contested the use of military manuals to determine customary humanitarian law: “Reliance on provisions of military manuals designed to implement treaty rules provides only weak evidence that those treaty rules apply as a matter of customary international law in non-treaty contexts:” John B. Bellinger III and William J. Haynes II, “A US government response to the ICRC study Customary International Humanitarian Law,” op. cit., p. 447. 135 The ICRC Study has relied on confidential communications made by Sates to the ICRC as practise. Only one author critised this approach: Iain Scobbie, “The Approach to Customary International Law in the Study,” op. cit., p. 25. 136 The ICRC Study also includes statements made at the meetings of international organisations and conferences in its definition of State practise: see ICRC, Customary International Humanitarian Law, Vol. I, 2005, pp. xxxii–xxxiii. This interpretation was criticised by one author, who stated that “Common sense dictates that a State’s declarations at such meetings tend to be more aspirational than practical because they are often tailored to meet a political goal:” Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” Duke Journal of Comparative and International Law, Vol. 17, 2006–2007, p. 238. However, Michael Bothe rightly stated that “the argument that physical behaviour counts more than words is flawed. In a way, it implies that States do not really mean what they say . . . this should not be lightly assumed:” Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” op. cit., p. 156. 137 The ICRC Study takes also into account official ICRC statements and documents as practise relevant to the formation of custom, because the ICRC has “international legal personality:” ICRC, Customary International Humanitarian Law, Vol. I, Introduction, pp. xxxv–xxxvi. The Study also gave attention to the practise of other NGOs like Amnesty International. The Study did not, however, use ICRC statements as primary sources of evidence supporting the customary nature of a rule. They are “cited to reinforce conclusions that were reached on the basis of State practice alone:” Jean-Marie Henckaerts, “Customary International Humanitarian Law: a response to US comments,” International

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This has been contested by academics138 and States139 alike, although NGOs sometimes influence practise, as recognised by the ICTY,140 when their activities result in changed State practise.141 The ICJ mentioned as State practise administrative acts or attitudes,142 legislation,143 acts of the judiciary,144 and treaties.145 In Nicaragua, the Court

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141 142 143 144

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Review of the Red Cross, Vol. 89, No. 866, June 2007, p. 478. In fact, NGO statements were included in Vol. II under the category of “Other Practice,” which was not objected by the experts consulted in the elaboration of the study: Jean-Marie Henckaerts, “Customary International Humanitarian Law: a Response to US Comments,” op. cit., p. 479. Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” op. cit., p. 5; Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” op. cit., p. 241. The United States stated for example that the ICRC Study gives undue weight to statements by non-governmental organisations and the ICRC itself, when “those statements do not reflect whether a particular rule constitutes customary international law accepted by States:” John B. Bellinger III and William J. Haynes II, “A US government response to the ICRC Study Customary International Humanitarian Law,” op. cit., pp. 444–446. The ICTY specifically encouraged the ICRC to count its campaigns in favor of compliance with humanitarian law toward customary international law, stating: “From the angle that is of relevance to us, namely the emergence of customary rules on internal armed conflict, the ICRC has made a remarkable contribution by appealing to the parties to armed conflicts to respect international humanitarian law . . . The practical results the ICRC has thus achieved in inducing compliance with international humanitarian law ought therefore to be regarded as an element of actual international practice; this is an element that has been conspicuously instrumental in the emergence or crystallization of customary rules:” ICTY, The Prosecutor v. Dusko Tadić aka “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-941-AR72, para. 109. Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” op. cit., p. 240. Asylum case (Colombia v. Peru), 1950 ICJ Reports, p. 277; Right of Passage over Indian Territory, ICJ Reports 1960, pp. 39–40. Fisheries case, ICJ Reports 1951, p. 131. Lotus, PCIJ, Series A, No. 10, p. 28; Competence of the International Labour Organisation to Regulate, Incidentally, the Personal Work of the Employer, PCIJ, Series B, No. 13, p. 20; Serbian and Brazilian Loans cases, PCIJ, Series A, Nos. 20/21, pp. 47 and 125; Arrest Warrant of 11 April 2000, ICJ Reports 2002, p. 23, para. 56. Wimbledon, PCIJ, Series A, No. 1, p. 25; Factory at Chorsow (Jurisdiction), PCIJ, Series A, No. 9, p. 22; Territorial Jurisdiction of the International Commission of the River Oder, PCIJ Series A, No. 23, p. 27; Nottebohm, ICJ Reports 1955, pp. 22–23; North Sea Continental Shelf, ICJ Reports 1969, p. 41, para. 71; Fisheries Jurisdiction (United Kingdom/Iceland), ICJ Reports 1974, p. 23, paras. 51–53; Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, p. 29, para. 27; Interpretation of the Agreement of 25 March 1951 between the

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relied on acceptance of international organisations’ resolutions as forms of State practise.146 In Tadic, the Appeals Chamber of the ICTY relied primarily on “such elements as official pronouncements of States, military manuals and judicial decisions.”147 The court cited statements by governments,148 resolutions of the League of Nations and the United Nations,149 declarations of the European Union,150 instructions, and statements by insurgent groups,151 and national military manuals.152 In Hadzihasanovic, the ICTY turned to treaties, and the ‘authoritative’ ICRC Commentary on the 1949 Geneva Conventions to determine customary law.153 In addition, according to Article 38 of the ICJ Statute, the views of the most highly qualified publicists can be a subsidiary means of determining the law.154 The International Court did not provide guidance on the acceptance of a practise to qualify as a customary norm; but, as necessary, has referred simply to a “general acceptance,”155 “constant and uniform,”156 or even “virtually uniform,”157 State practise. In the Asylum case, a regional customary law was not found to be established because of the inconsistencies in practise.158 In Nicaragua, the Court specified that “in order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules.”159 There is no specific mathematical

146

147 148 149 150 151 152 153

154 155 156 157 158 159

WHO and Egypt, ICJ Reports 1980, p. 94, paras. 45–46; Nicaragua, ICJ Reports 1987, p. 98, para. 185; Arrest Warrant of 11 April 2000, ICJ Reports 2002, p. 24, para. 58. Nicaragua, ICJ Reports 1987, pp. 102–109, paras. 193, 202, 203, 204, and 205. See also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Reports, pp. 254–255. Prosecutor v. Tadic, Interlocutory Appeal on Jurisdiction, 2 October 1995, No. IT-94-1-AR72, para. 99. Ibid., pp. 465–483, paras. 100, 105, and 117. Ibid., pp. 467–478, paras. 101 and 110–112. Ibid., pp. 479–480, paras. 113 and 115. Ibid., pp. 469–473, paras. 102 and 107. Ibid., pp. 472–483, paras. 106 and 118. Prosecutor v. Hadzihasanovic, Decision on Command Responsibility, No. IT-01-47-AR72, 16 July 2003, para. 17, cited in Theodor Meron, “Revival of Customary Humanitarian Law,” op. cit., p. 824. Robert Cryer, “Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study,” op. cit., p. 248. Fisheries Jurisdiction case, ICJ Reports 1974, p. 3, paras. 23–36. ICJ Reports 1960, p. 6, para. 40. North Sea Continental Shelf cases, ICJ Reports 1969, p. 43, para. 74. Asylum case (Colombia v. Peru), 1950 ICJ Reports, p. 277. ICJ Reports 1986, p. 98, para. 186.

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threshold for how extensive practise has to be, because the density of practise depends primarily on the subject-matter.160 Contrary practise and practise of non-party States to treaties should also be examined.161 This has not in reality been the case in the ICRC Study on Customary International Humanitarian Law.162 This position was criticised by States163 and academics.164 In addition, it has been argued by the ICJ,165 160 Jean-Marie Henckaerts, “Customary International Humanitarian Law: a Response to US Comments,” op. cit., p. 474. 161 “In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested—namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, thought at all times fully able and entitled to do so, has nevertheless somehow become bound in another way:” North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), 1969 ICJ Reports, p. 25, para. 28. This position is supported by the literature: “The acts of non-State parties which dissent from the treaty provisions may constitute representative practice, and the expression of opinio juris as well:” Iain Scobbie, “The Approach to Customary International Law in the Study,” op. cit., p. 33. 162 The Study took the view that the contrary practise does not prevent the formation of a rule as long at this practise is condemned by other States or is denied by the perpetrator itself as not representing an official practise: see ICRC, Customary International Humanitarian Law, Vol. I, Introduction, p. xxxvii. The Study also expressly stated that it did not limit itself to the practise of non-parties, because only to examine the practise of the thirty or so States that were not party to the Additional Protocols would not comply with the requirement that custom be based on widespread and representative practise: ICRC, Customary International Humanitarian Law, Vol. I, Introduction, p. xliv. 163 John B. Bellinger III and William J. Haynes II, “A US Government Response to the ICRC Study Customary International Humanitarian Law,” op. cit., pp. 444–446. 164 Yoram Dinstein, “ICRC Customary International Law Study,” op. cit., pp. 10–11; Iain Scobbie, “The Approach to Customary International Law in the Study,” op. cit., p. 33; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” op. cit., p. 1224. Daniel Bethlehem cited the view of Judge Sir Robert Jennings, dissenting in the Nicaragua case, that it is difficult, if not impossible, to identify State practise relative to a rule of customary international law by a State party to a treaty of parallel application as all the relevant practise is in reality practise in the exercise of the treaty, not the customary rule: Daniel Bethlehem, “The Methodological Framework of the Study,” in Elizabeth Wilmshurst and Susan Breau (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law, op. cit., p. 8. 165 North Sea Continental Shelf Case (FRG v. Denmark; FRG v. The Netherlands), 1969 ICJ Reports, p. 43.

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academics,166 and States, 167 that greater weight should be given to the actions and practise of “special interest States,” that is States that are specially affected by the subject-matter of international humanitarian law treaties. The ICRC’s position is that the concept of special interest States is not applicable in the sphere of armed conflict because this phenomenon affects humanity as a whole.168 Opinio Juris The proof of opinio juris is a more difficult issue.169 The ICJ’s jurisprudence suggests that it involves evidence of a consciousness of legal obligation,170 but the type of evidence required is not made clear. Occasionally, the Court identified opinio juris in State practise.171 But, for the most part, the Court, as previously mentioned, has not tried to prove the existence of an opinio juris; it simply asserted that it existed.172 Still, the jurisprudence of the Court demonstrates several possibilities for the establishment of an opinio juris. On several occasions, the Court has used

166 Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” op. cit., pp. 239–240. 167 John B. Bellinger III and William J. Haynes II, “A US Government Response to the ICRC Study Customary International Humanitarian Law,” op. cit., pp. 444–446. 168 Jean-Marie Henckaerts, “Study on Customary International Humanitarian Law,” International Review of the Red Cross, Vol. 87, 2005, p. 181. 169 For a comprehensive review of the different theories on opinio juris, see Jo Lynn Slama, “Opinio Juris in Customary International Law,” Oklahoma City University Law Review, Vol. 15, 1990, pp. 603–656. 170 The traditional approach to the opinio juris requirement was well summarised in the North Sea Continental Shelf cases, where it was said that the acts in question: “must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it . . . The States concerned must therefore feel that they are conforming to what amounts to a legal obligation:” North Sea Continental Shelf cases, ICJ Reports 1969, p. 44. 171 The Right of Passage Over Indian Territory case makes clear that support for opinio juris can be found in “constant and uniform practice:” (Portugal v. India), 1960 ICJ Reports, p. 40. 172 The Court referred for example, without further explanation, to the ‘well-known’ character of the rule that no one can act as a judge in his own case: Article 3, Paragraph 2, of the Treaty of Lausanne, PCIJ, Series B, No. 12, p. 32; or to ‘ordinary’ rules: Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, PCIJ, Series A/B, No. 44, p. 23. See also Reparations for the Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p. 186; Corfu Channel, ICJ Reports 1949, p. 22; Interhandel, ICJ Reports 1959, p. 27; Barcelona Traction, ICJ Reports 1970, p. 38, paras. 53–54.

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the resolutions of the General Assembly to prove the existence of opinio juris.173 In addition, the Lotus case and the Asylum case indicate that protests are effective expressions of a State’s objection to a customary rule.174 Conversely, a State’s failure to protest may be evidence of opinio juris. Moreover, the Right of Passage, the North Sea Continental Shelf,175 and the Nicaragua cases,176 all indicate that treaties may also be recognised as opinio juris, especially if such conventions have attracted “a very widespread and representative participation,”177 even if such treaty had not come into force.178 Finally, the Court also seemed to accord the status of opinio juris to statements made by the International Law Commission179 and some of its previous decisions.180 As these two bodies are not composed of States, the characterisation of their statements as opinio juris is a considerable extension of this notion.181

173 Western Sahara, ICJ Reports 1975, pp. 31–33, paras. 55–59; Namibia, ICJ Reports 1971, p. 31, para. 52; East Timor, ICJ Reports 1995, p. 102, para. 29; Nicaragua, ICJ Reports 1986, pp. 100–106, paras. 188, 191 and 202; Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, pp. 254–255, para. 70; Legal Consequences of the Construction of a Wall in the OPT, ICJ Reports 2004, pp. 171–172, paras. 87–88. 174 France v. Turkey, 1927 PCIJ, series A, No. 10; Colombia v. Peru, 1950 ICJ Reports, p. 266. 175 Right of Passage over Indian Territory (Portugal v. India), 1960 ICJ Reports, p. 40; Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1985 ICJ Reports, pp. 29–30 (“It is of course axiomatic that the material of customary interna­tional law is to be looked for, primarily, in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them”). 176 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), p. 99, para. 188. 177 North Sea Continental Shelf, p. 42, para. 73. 178 In Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the ICJ regarded the Law of the Sea Convention as crystallising norms of customary international law, even though it had not even come into force: ICJ Reports 1982, p. 3, paras. 38, 48–49. See also Continental Shelf (Libya/Malta) pp. 31–32, paras. 29–30; Maritime Boundary in the Gulf of Maine Area case, ICJ Reports 1984, p. 246, paras. 94–96. 179 Nicaragua, ICJ Reports 1987, pp. 100–101, para. 190. 180 Nicaragua, pp. 106–107, para. 202 (citing the Corfu Channel case, ICJ Reports 1949, p. 34). 181 Hilary Charlesworth, “Customary International Law and the Nicaragua Case,” Australian Yearbook of International Law, Vol. 11, 1991, p. 18. On the approach of the Court in the Nicaragua case, see Jonathan I. Charney, “Customary International Law in the Nicaragua Case, Judgement on the Merits,” Hague Yearbook of International Law, Vol. 1, 1988, pp. 16–29; Wladyslaw Czaplinski, “Sources of International Law in the Nicaragua Case,” International Comparative Law Quarterly, Vol. 38, 1989, pp. 151–166; Maurice H. Mendelson, “The Nicaragua Case and Customary Law,” in William Butler (ed.), The NonUse of Force in International Law, Martinus Nijhoff, Dordrecht, 1989, pp. 85–100; Peter

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In fact, as acknowledged in the ICRC Study, quite often, State practise and opinio juris overlap in the evidence cited for customary international law,182 and by scholars.183 As shown above, the Court has used the same instruments, such as General Assembly resolutions and treaties, as a proof of both opinio juris and State practise. Indeed, the theory of the two elements of custom is a doctrinal reconstruction to which the Court has not always adhered in practise.184 This does not mean that opinio juris should simply be inferred from practise.185 Conclusion on the Determination of Customary Law It is necessary to adopt a relatively modern approach in the determination of customary law. State practise and opinio juris cannot be systematically distinguished and should be considered together. This modern approach is justified by the fact that for several reasons, greater weight must be given in IHL to opinio juris than to State practise.186 Firstly, traditionally, the part of customary law relating to war was not developed through repeated practise in wartime, but through the conclusion of multilateral agreements in peacetime, which

Rijpkema, “Customary International Law in the Nicaragua Case,” Netherlands Yearbook of International Law, Vol. 20, 1989, pp. 91–116. 182 ICRC, Customary International Humanitarian Law, Rules, Vol. I, edited by Louise DoswaldBeck and Jean-Marie Henckaerts, Cambridge University Press, Geneva, 2005, pp. xl and xxxix. 183 For Michael Bothe, not only it can be difficult to distinguish between opinio juris and practise, but it might be even unnecessary: Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” op. cit., p. 161. See also Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” op. cit., p. 243. 184 Peter Haggenmacher, “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale,” Revue générale de droit international public, Vol. 90, 1986, pp. 5–125. 185 See for example the discussion between the US Government and one of the two authors of the ICRC Study on Customary International Humanitarian Law: John B. Bellinger III and William J. Haynes II, “A US Government Response to the ICRC Study on Customary International Humanitarian Law,” op. cit., p. 446; Jean-Marie Henckaerts, “Customary International Humanitarian Law: a Response to US comments,” op. cit., p. 482. 186 Robert Kolb, “Selected Problems in the Theory of Customary International Law,” op. cit., p. 124. See also Christian Tomuschat, “International Law: Ensuring the Survival of Mankind in the Eve of a New Century,” RCADI, Vol. 281, 1999, p. 334; Rosemary Abi-Saab, “Les conflits internes aujourd’hui,” in Mélanges J. Siotis, Bruylant, Bruxelles, 1995, pp. 323– 325; Antonio Cassese, International Law, second edition, Oxford University Press, Oxford, 2005, p. 161.

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can be considered to form State practise.187 Secondly, customs in this field prescribe ideal standards of conduct rather than describe existing practise.188 In humanitarian law, international law-making conferences attempt to establish rules that the majority of conference participants regard as more advanced and more desirable.189 Thirdly, according to Greenwood, State practise in the field of humanitarian law is not easy “to discover (given the secrecy which generally surrounds the wartime activities of States), or to evaluate (since the nature of armed conflicts means that the gulf between principle and practice is likely to be particularly marked).”190 Fourthly, the rights in question are generally difficult to measure because they are negative rights, which place limitations on State action rather than impose a positive duty on States to act. For example, breaches of human rights obligations are often characterised as contrary to State practise,191 but there is little corresponding focus on governments’ respect for human rights obligations as positive instances of practise.192 187 “Report of the Swedish International Humanitarian Law Committee, Stockholm, 1984,” in Marco Sassòli and Antoine A. Bouvier (eds.), How Does Law Protect in War?, Vol. II, second edition, ICRC, Geneva, 2006, p. 967. 188 Oscar Schachter, “International Law in Theory and Practice,” op. cit., p. 11; Theodor Meron, “On a Hierarchy of International Human Rights,” American Journal of International Law, Vol. 80, 1986, pp. 19–20; Oscar Schachter, “Entangled Treaty and Custom,” in Yoram Dinstein (ed.), International Law at a Time of Perplexity, Essays in honour of Shabtai Rosenne, Martinus Nijhoff, Dordrecht, 1989, pp. 733–34. 189 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), “The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy, Vol. 2, 1987, p. 455. 190 Christopher Greenwood, “Customary Law Status of the 1977 Additional Protocols,” in Astrid J. Delissen and and Gerard J. Tanja (eds.), Humanitarian Law of Armed Conflict, Challenges Ahead, Essays in Honour of Frits Kalshoven, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, p. 99. 191 Hiram Chodosh, “Neither Treaty nor Custom: The Emergence of Declarative International Law,” Texas International Law Journal, Vol. 26, 1991, p. 121; Bruno Simma and Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles,” Australian Yearbook of International Law, 1988–89, pp. 90–100; James S. Watson, “Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law,” University of Illinois Law Review, Vol. 3, Winter 1979, pp. 609–12; Arthur A. Weisburd, “The Effect of Treaties and Other Formal International Acts on the Customary Law of Human Rights,” Georgia Journal of International and Comparative Law, Vol. 25, 1995/96, p. 129; Arthur A. Weisburd, “Customary International Law: The Problem of Treaties,” Vanderbilt Journal of Transnational Law, Vol. 21, 1988, p. 41. 192 Theodor Meron, “Human Rights and Humanitarian Norms as Customary Law,” op. cit., p. 61.

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The proofs of customary law will therefore include verbal statements by State representatives and resolutions by international organisations, treaties, court decisions, national legislations, military manuals, and opinions of national legal advisors.193 They should be examined in the following order: international law provisions in treaties, national practise (military manuals, national legislation and case-law), practise of international organisations (United Nations and other international organisations’ documents, other international organisations), practise of international judicial and quasijudicial bodies, and other practise (including statements from academics). It is also useful to distinguish between international and non-international armed conflicts. For instance, several scholars regretted that the ICRC Study on Customary International Humanitarian Law did not better differentiate between the rules applicable in internal and international armed conflicts,194 and failed to provide a definition of armed conflict.195 Others supported the conclusions of the ICRC Study whereby customary rules regarding the conduct of hostilities often apply in both international and non-international armed conflicts,196 as States do not always in practise differentiate their mode of 193 Following therefore the analysis of the International Law Commission which listed in 1950, as evidence of customary international law: treaties, decisions of national courts and international tribunals, national legislation, diplomatic correspondence, opinions of national legal advisors, and the practise of international organisations: see “Report of the International Law Commission to the General Assembly (Part II): Ways and Means of Making the Evidence of Customary International Law More Readily Available,” Yearbook of the International Law Commission, Vol. 2, ILC Doc. A/1316, 1950, p. 367. 194 Michael Bothe, “Customary International Humanitarian Law : Some Reflections on the ICRC Study,” op. cit., p. 175; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” German Law Journal, Vol. 6, 2005, p. 1236; Leah M. Nicholls, “The Humanitarian Monarchy Legislates: The ICRC and Its 161 Rules of Customary International Humanitarian Law,” op. cit., p. 236. 195 Djamchid Momtaz, “The ICRC Study on Customary International Humanitarian Law— An Assessment,” in Larry Maybee and Benarji Chakka (eds.), Custom as a Source of International Humanitarian Law, Proceedings of the Conference to Mark the Publication of the ICRC Study “Customary International Humanitarian Law” held in New Delhi, 8–9 December 2005, op. cit., p. 72; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” op. cit., p. 1226. 196 For Henckaerts, there is a wide practise in non-international armed conflicts, influenced by Additional Protocol II. Therefore, a big number of Protocol II provisions should be considered as customary norms. In addition, a number of Protocol I norms have become applicable in non-international conflicts as well, due to practise of States: see JeanMarie Henckaerts, “Etude du CICR sur le droit international humanitaire coutumier:

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combat in both conflicts due to humanitarian considerations.197 One is therefore tempted to distinguish between customary principles applicable in internal and international armed conflicts. In deciding whether a practise is “virtually uniform,” reliance will be placed on the approach in the Asylum case, namely that different States must not have engaged in substantially different conduct. Similarly, little account will be taken of persistent objection. The “persistent objector” academics maintain that a State, which persistently and unequivocally objects to the emergence of a new customary rule, cannot be held bound by that rule.198 This exception is usually assigned very limited scope199 and is generally regarded as inapplicable to norms of jus cogens. In particular, the ICRC Study expressed some doubt as to its validity in international humanitarian law and did not really take this concept into account,200 which was sometimes regretted.201 objet, ­caractéristiques, conclusions et pertinence,” dans Paul Tavernier et Jean-Marie Henckaerts (eds.), Droit international humanitaire coutumier: Enjeux et défis contemporains, Bruylant, Bruxelles, 2008, pp. 45 and 47. 197 Francois Bugnion, “Le droit international humanitaire coutumier et les conflits armés non internationaux,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., p. 186; Michael Cowling, “International Lawmaking in Action—The ICRC Customary International Humanitarian Law Study and Non-International Armed Conflicts,” African Yearbook on International Humanitarian Law, 2006, p. 87. 198 See the Anglo-Norwegian Fisheries case (United Kingdom v. Norway), ICJ Reports 1951, p. 131, paras. 138–9. See also Nuclear Tests cases, ICJ Reports 1974, p. 253, paras. 286– 93; Asylum case, ICJ Reports 1950, p. 266, paras. 277–8; Commentary on Formation of Customary (General) International Law, Final Report, International Law Association, 69th Conference, London, 2000, pp. 738–139. 199 M. E. Villiger, “Customary International Law and Treaties,” op. cit., p. 16 (arguing that “meticulous compliance” with two conditions is necessary: the objection must begin before the formation of the rule and continue after its formation; and the objection must be maintained consistently). See also Hugh Thirlway, International Customary Law and Codification, Sijthoff, Leide, 1972, p. 110; Ian Brownlie, “Principles of Public International Law,” op. cit., p. 9; Anthony D’Amato, “The Concept of Custom in International Law,” op. cit., pp. 187–195 and 261; Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1986, p. 185. 200 ICRC, Customary International Humanitarian Law, Vol. I, Introduction, op. cit., p. xxxix. This position was not explained: see Jean-Marie Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,” International Review of the Red Cross, Vol. 87, No. 857, March 2005, p. 181. 201 Jean-Luc Florent, “Opposabilité de l’étude du CICR sur le droit international humanitaire coutumier aux Etats,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international

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4.1.2 Jus Cogens or Peremptory Norms of International Law Jus cogens norms, or peremptory norms, are rules of international law from which no State may derogate by agreement or otherwise (including the persistent objector).202 They render void other, non-peremptory rules, which are in conflict with them, according to the academics who recognised the concept.203 Moreover, many scholars believe that a jus cogens norm holds the humanitaire coutumier: Enjeux et défis contemporains, op. cit., p. 78; Eric David, “L’objecteur persistant, une règle persistante?,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 89–99; Michael Bothe, “Customary International Humanitarian Law: Some Reflections on the ICRC Study,” op. cit., p. 161; Malcolm MacLaren and Felix Schwendimann, “An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law,” German Law Journal, Vol. 6, 2005, p. 1224. 202 M.K. Yasseen, U.N. Conference on the Law of Treaties, Official Records, 1968, United Nations, New York, 1969, p. 472; Christos Rozakis, The Concept of Jus Cogens in the Law of Treaties, North-Holland, Amsterdam, 1976, p. 78; Levan Alexidze, “Legal Nature of Jus Cogens in Contemporary International Law,” RCADI, Vol. 172, 1981-III, pp. 246–247 and 258; Ian Brownlie, Principles of Public International Law, op. cit., p. 514; Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” Nordic Journal of International Law, Vol. 66, 1997, p. 217; Antonio Cassese, International Law in a Divided World, op. cit., p. 178; Hans-Peter Neuhold, “Völkerrechtlicher Vertrag und Drittstaaten,” Berichte de Deutschen Gesellschaft für Völkerrecht, Vol. 28, 1988, p. 63; Giorgio Gaja, “Jus Cogens Beyond the Vienna Convention,” RCADI, Vol. 172, 1981-III, p. 281; Stefanie Schmahl, “An Example of Jus Cogens: The Status of Prisoners of War,” in Christian Tomuschat and Jean-Marc Thouvenin, The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Martinus Nijhoff Publishers, Leiden/ Boston, 2006, p. 44. The Inter-American Commission on Human Rights also appears to have recognised that a persistent objection cannot be advanced against jus cogens: Reach and Pinkerton v. U.S., Annual Report of the Inter-American Commission on Human Rights, OEA/Ser.L/VII/71, p. 168, para. 54; Maarten Bos, A Methodology of International Law, North-Holland, Amsterdam, 1984, pp. 246 and 250; G. J. H. Van Hoff, Rethinking the Sources of International Law, Kluwer, Deventer, 1983, pp. 160–162; Christos Rozakis, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, pp. 76–80; Antonio Gómez Robledo, “Le ius cogens international: sa genèse, sa nature, ses fonctions,” RCADI, Vol. 172, 1981-III, pp. 106–108; Hilary C. M. Charlesworth, “Customary International Law and the Nicaragua Case,” op. cit., pp. 3–4. 203 Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” Nordic Journal of International Law, Vol. 66, 1997, p. 211; Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Finnish Lawyers’ Publishing Company, Helsinki, 1988, pp. 716–723; Michael Akehurst, A Modern Introduction to International Law, fifth edition, George Allen & Unwin, London, 1984, pp. 40–41; Ian Brownlie, Principles of Public International Law, op. cit., pp. 512–13; John Dugard, Recognition and the United Nations, Grotius Publications Limited, Cambridge, 1987, pp. 123–63; Taslim Olawale Elias, The Modern Law of Treaties, Oceana Publications, Dobbs

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highest hierarchical position among all other norms and principles.204 With the Responsibility to Protect, we have seen the emergence of the principle that all States have an obligation to bring to an end violations of jus cogens norms.205

Ferry, 1974, p. 177; Hans Kelsen, Principles of International Law, second edition, Rinehart and Winston, New York, 1966, p. 483; Myres S. McDougal, Harold D. Lasswell and Lungchu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity, New Yale University Press, Haven, 1980, pp. 338–50; Theodor Meron, Human Rights Law-Making in the United Nations, Oxford University Press, Oxford, 1986, pp. 184–200; Ian Sinclair, The Vienna Convention on the Law of Treaties, second edition, Manchester University Press, Manchester, 1984, pp. 203–41; Jerzy Sztucki, Jus-Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal, Springer, Wien/New York, 1974; Levan Alexidze, “Legal Nature of Jus Cogens in Contemporary International Law,” RCADI, Vol. 172, 1982, p. 227; Gerald Fitzmaurice, “The General Principles of International Law Considered From the Standpoint of the Rule of Law,” RCADI, Vol. 92, 1957, pp. 125– 26; Giorgio Gaja, “Jus Cogens Beyond the Vienna Convention,” RCADI, Vol. 172, 1982, p. 279; Oscar Schachter, “International Law in Theory and Practice,” RCADI, Vol. 178, 1985, p. 339; Egon Schwelb, “Some Aspects of International Jus Cogens as Formulated by the International Law Commission,” American Journal of International Law, Vol. 61, 1967, p. 946; Eric Suy, “The Concept of Jus Cogens in Public International Law,” in Carnegie Endowment for International Peace, The Concept of Jus Cogens in International Law, Carnegie Endowment for International Peace, Geneva, 1967, p. 17; Grigory Tunkin, “International Law in the International System,” RCADI, Vol. 147, 1975, p. 98; Alfred Verdross, “Jus Dispositivum and Jus Cogens in International Law,” American Journal of International Law, Vol. 60, 1966, p. 55; Marjorie M. Whiteman, “Jus Cogens in International Law, With a Projected List,” Georgia Journal of International and Comparative Law, Vol. 7, 1977, p. 609; Nicholas Onuf and Richard Bimey, “Peremptory Norms of International Law: Their Source, Function and Future,” Denver Journal of International Law and Policy, Vol. 4, 1974, p. 187; Ronald Macdonald, “Fundamental Norms in Contemporary International Law,” Canadian Yearbook of International Law, Vol. 25, 1987, p. 115; Gennady Danilenko, “International Jus Cogens: Issues of Law-Making,” European Journal of International Law, Vol. 2, 1991, p. 42; Stefan Kadelbach, Zwingendes Vôlkerrecht, Duncker & Humblot, Berlin, 1992. For a review of the historical development of the concept of jus cogens, and of the literature on the topic, see George D. Jr. Haimbaugh, “Jus Cogens: Root and Branch (An Inventory),” Touro Law Review, Vol. 3, 1986–1987, pp. 203–227. 204 Cherif M. Bassiouni, “A Functional Approach to General Principles of International Law,” Michigan Journal of International Law, Vol. 11, 1990, pp. 801–809; Nicholas Onuf and Richard Birney, “Peremptory Norms of International Law: Their Source, Function and Future,” op. cit., p. 188; Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., pp. 216–217. 205 Andrew Clapham, “Responsibility to Protect: ‘Some Sort of Commitment’,” in Vincent Chetail (ed.), Conflicts, security and cooperation: liber amicorum Victor-Yves Ghebali, Bruylant, Bruxelles, 2007, p. 186.

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Jus cogens norms should fulfil four criteria: to be norms of a general nature,206 to have been accepted by the international community of States as a whole,207 to which no derogation is possible, and which can be modified only by new peremptory norms.208 Lauri Hannikainen added to this the criterion that peremptory obligations are owed by all States and other subjects of international law to the international community of States.209 Scholars disagree on how a norm rises to the level of jus cogens, i.e. on the sources of jus cogens norms.210 Several scholars argue that jus cogens rules are derived from the process of customary international law.211 By contrast, others 206 Nicholas Onuf and Richard Birney, “Peremptory Norms of International Law: Their Source, Function and Future,” op. cit., p. 190. 207 The Federal Constitutional Tribunal of the Federal Republic of Germany in 1965 provided one of the first decisional expressions of criteria for peremptory norms: “The quality of such peremptory norms may be attributed only to such legal rules as are firmly rooted in the legal con­viction of the community of nations and are indispensable to the existence of the law of nations as an international legal order, and the observance of which can be required by all members of the international community:” In the matter of petition for review of the constitutionality of three decisions of the Federal Supreme Tax Court by . . ., a corporation at Zurich (Switzerland), Decisions of the Federal Supreme Constitutional Court, Vol. 18, p. 448, quoted in Stefan A. Riesenfeld, “Jus Dispositivum and Jus Cogens in International Law: In the Light of a Recent Decision of the German Supreme Constitutional Court,” American Journal of International Law, Vol. 60, 1966, p. 513. 208 Jus cogens rules have been defined in Article 53 of the Vienna Convention on the Law of Treaties of 1969 as norms “accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Article 64 of the same Convention adds “if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” Similar definitions have been embodied in the 1986 Vienna Convention on the Law of Treaties. 209 Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, Finnish Lawyers’ Publishing Company, Helsinki, 1988, p. 6. 210 For a suggestion that  jus cogens rules may be derived from either treaties, customary international law, or general principles of law, see “Report of the I.L.C. on the Work of Its 18th Session,” Yearbook of the International Law Commission, Vol. 2, 1966, p. 248. 211 Ian Brownlie, Principles of Public International Law, op. cit., pp. 514–517; Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 226–42; Anthony D’Amato, “The Concept of Custom in International Law,” op. cit., p. 132; Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 239; Wladyslaw Czaplinski, “Ius Cogens and the Law of Treaties,” in Christian Tomuschat and Jean-Marc Thouvenin

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distinguish between jus cogens and custom.212 Some scholars question whether jus cogens is simply another way of describing general principles of international law.213 Finally, there exists the belief that jus cogens norms derive from natural law. 214 The ICJ recently implied that jus cogens rules need to be simply accepted by the international community of States as a whole and without the need to prove an opinio juris.215 Several examples of jus cogens norms have been identified by States, the academic literature, and international courts. States that participated in the Vienna Conference on the Law of Treaties gave these examples: the prohibition of the threat or use of force; sovereignty of States, self-determination, non-intervention in the domestic affairs of States, pacific settlement of disputes, maintenance of peace among nations and of international security,

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(eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Martinus Nijhoff Publishers, Leiden/Boston, 2006, p. 92; Jordan Paust, “The Reality of Jus Cogens,” Connecticut Journal of International Law, Vol. 7, 1991, pp. 81–85; Stefan Kadelbach, Zwingendes Vôlkerrecht, Duncker & Humblot, Berlin, 1992, p. 186; Robert Kolb, “Selected Problems in the Theory of Customary International Law,” Netherlands International Law Review, Vol. 2, 2003, p. 124; Stefanie Schmahl, “An Example of Jus Cogens: The Status of Prisoners of War,” in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order, op. cit., p. 42. Prosper Weil, “Towards Relative Normativity in International Law?,” American Journal of International Law, Vol. 77, 1983, p. 427; Gordon A. Christenson, “Jus Cogens: Guarding Interests Fundamental to International Society,” Virginia Journal of International Law, Vol. 28, 1987–1988, pp. 585–648; Mark W. Janis, “The Nature of Jus Cogens,” Connecticut Journal of International Law, Vol. 3, 1987–1988, pp. 359–363; Nicholas G. Onuf and Richard K. Birney, “Peremptory Norms of International Law: Their Source, Function and Future,” op. cit., p. 195. Cherif M. Bassiouni, Crimes against Humanity in International Criminal Law, Kluwer, Dordrecht, 1992, p. 87. For the Judge Li Haopei, jus cogens originates from municipal law and can be found in the municipal law of almost all nations, such as the principle that marriage is a voluntary union for life, and not only for one or three years: Li Haopei, “Jus Cogens and International Law,” in Sienho Yee and Wang Tieya (eds.), International Law in the Post-Cold War World, Essays in Memory of Li Haopei, Routledge Studies in International Law, London/New York, 2001, p. 500. U.N. Conference on the Law of Treaties, Official Records, 1968, United Nations, New York, 1969, statements by Italy (p. 311); Ecuador (p. 320); Monaco (p. 324). Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgement of 3 February 2006, 2006 ICJ Reports, para. 64; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2007, 2007 ICJ Reports, paras. 147 and 161.

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political independence of a State, right of self-defence, humanitarian treatment of war victims, prohibition of unequal treaties, freedom of the high seas, and rules on diplomatic and consular relations contained in the Vienna Conventions of 1961 and 1963.216 The Commission’s Report of the Conference listed also the prohibition of trade in slaves, piracy, or genocide, and violations of human rights.217 Torture has also been considered a jus cogens norm by the International Tribunal for the Former Yugoslavia.218 Moreover, the following jus cogens norms have been considered by judges of the ICJ: the right of access to enclaved property including passage of armed forces,219 “the legal interest in general humanitarian causes,”220 “the law concerning the protection of human rights,”221 equidistance,222 the “respect due to principles of an international or humane nature,” and the right of self-determination.223 Scholars recognise generally as jus cogens the prohibitions against slavery,224 torture,225 216 Jerzy Sztucki, The Conventional Concept of Peremptory Norms (Jus Cogens), SpringerVerlag, Vienna and New York, 1974. Sztucki’s list of examples is reprinted in Burns H. Weston, Richard A. Falk and Anthony A. D’Amato, International Law & World Order, second edition, West Publishing Co, St-Paul, 1990, pp. 631–32. 217 “International Law Commission Report,” Yearbook of the International Law Commission, Vol. 2, 1966, pp. 247–49; cited in George D. Jr. Haimbaugh, “Jus Cogens: Root and Branch (An Inventory),” op. cit., p. 206. 218 Prosecutor v. Furundzija, IT-95-17/1-T, Judgement, 10 December 1998, para. 153. For decisions of national courts, see Andrew Clapham, “The ‘Jus Cogens’ Prohibition of Torture and the Importance of Sovereign State Immunity,” in Marcelo Cohen (ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law: “Liber Amicorum” Lucius Caflisch, Martinus Nijhoff, Leiden, 2007, pp. 151–169. 219 Accepted in a dissenting opinion by Judge Fernandes (ad hoc Judge from Portugal) in the Case Concerning Rights of Passage Over Indian Territory: 1960 ICJ Reports, p. 135. 220 Accepted in a separate opinion by Judge Jessup in the South West Africa Cases: 1962 ICJ Reports, p. 425. 221 Accepted by Judge Tanaka in his dissenting opinion in the South West Africa Case: 1966 ICJ Reports, p. 298. 222 “An essential principle of the continental shelf institution” according to Judge Tanaka in his dissenting opinion in the North Sea Continental Shelf Cases: 1969 ICJ Reports, p. 182. 223 Accepted by Judge Ammoun in his separate opinion in the Barcelona Traction Case: 1970 ICJ Reports, pp. 304 and 325. Examples cited in George D. Jr. Haimbaugh, “Jus Cogens: Root and Branch (An Inventory”), op. cit., p. 223. 224 Ian Brownlie, Principles of Public International Law, op. cit., p. 513; Stefan Kadelbach, Zwingendes Vôlkerrecht, Duncker & Humblot, Berlin, 1992, pp. 296–297; Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 716–723. 225 Andrew Clapham, “The ‘Jus Cogens’ Prohibition of Torture and the Importance of Sovereign State Immunity,” op. cit., pp. 151–169; Rosalyn Higgins, “Derogations under

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apartheid,226 genocide,227 piracy, the prohibition of the use of force, the obligations to settle disputes peacefully, the right of peoples to selfdetermination,228 and the primacy of human rights.229 To conclude, peremptory norms have their origin in more than just one of the traditional sources listed in Article 38 of the Statute of the ICJ. The intrinsic value of a rule and its integration within “the international conscience” are reflected in the acceptance of that rule as jus cogens should therefore be assessed on a case-by-case basis.230 4.1.3 Obligations Erga Omnes The wording ‘obligations erga omnes’ was born in an obiter dictum of the ICJ in the Barcelona Traction case.231 The ICJ then mentioned erga omnes norms

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228 229

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Human Rights Treaties,” British Yearbook of International Law, Vol. 48, 1976–1977, p. 282; Nigel Rodley, The Treatment of Prisoners in International Law, Clarendon, Oxford, 1987, p. 70; Stefan Kadelbach, Zwingendes Vôlkerrecht, op. cit., pp. 291–294; Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 219; Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 716–723. John Dugard, Recognition and the United Nations, Grotius Publications Limited, Cambridge, 1987, pp. 156–158; Stefan Kadelbach, Zwingendes Vôlkerrecht, op. cit., pp. 277– 282; Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 219 The Inter-American Human Rights Commission stated that a rule of customary international law such as one prohibiting genocide “achieves the status of jus cogens precisely because it is the kind of rule that it would shock the con­science of mankind and the standards of public morality for a State to protest:” Resolution No. 3/87, Case No. 9647 (United States), Inter-Am. C.H.R., OEA/ser. L/V/II.69, doc. 17 para. 55 (27 March 1987), cited in Gordon A. Christenson, “Jus Cogens: Guarding Interests Fundamental to International Society,” op. cit., p. 638. See also Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 716–723. Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 716–723. At the Vienna Conference, the representative of the Holy See suggested that the principle of the primacy of human rights should be recognised as jus cogens: UNCLT, Official Records, First session, pp. 258–259, para. 75. See for example Ago’s intervention reproduced in Yearbook of the International Law Commission, 1963-I, p. 71, para. 50; Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1997, p. 54. “[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a

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on several other occasions: in the advisory opinion on Namibia,232 the Nuclear Test cases,233 the cast Timor case,234 the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide,235 and in its advisory opinion on the Wall.236 In the words of the ICJ, these obligations are owed by every State to the international community as a whole, and are therefore the concern of all States, and thus all States can be held to have a legal interest in their protection.237 The concept of ‘as a whole’ does not mean that the unanimous consent of all States is required, but means the overwhelming

legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . ; others are conferred by international instruments of a universal or quasi-universal character. Obligations the performance of which is the subject of diplomatic protection are not of the same category:” Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 ICJ Reports, p. 32, paras. 33–35. With this dictum the Court was effectively reversing its judgement in the South West Africa Cases (Second Phase): 1966 ICJ Reports, p. 6. 232 The Court stated: “the termination of the mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law:” Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p. 56. 233 The Court analysed certain unilateral statements made by French government officials as having been made “erga omnes,” and held those statements to be legally binding: 1974 ICJ Reports, pp. 269–270, paras. 50–51. 234 Here the Court accepted that the right of self-determination is a rule, which has an “erga omnes character:” 1995 ICJ Reports, p. 102, para. 29. 235 In its 1996 judgement on preliminary objections in the case, the Court affirmed that “the rights and obligations enshrined by the Convention are rights and obligations erga omnes:” 11 July 1996, General List No. 91, p. 23, para. 31. 236 The Court referred to grave breaches of the Geneva Conventions as erga omnes norms: Advisory opinion of 9 July 2004, paras. 155–158. 237 As was explained by the ICJ in the Barcelona Traction Case, each State not only has rights and obligations with respect to the substantive content of the rule, giving rise to State responsibility vis-à-vis injured States in the event of a violation, but it is also subject to a series of additional, bilateralised rights and obligations. The additional rights enable it to make claims against any State which is bound by and violates the substantive rule, while the additional obligations require that it not violate that same substantive rule in its relations with any other similarly bound State.

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majority of States, including all essential components of the international community.238 The concept of erga omnes rules has been endorsed by various scholars.239 For Maurizio Ragazzi, the obligations of erga omnes should fulfil the following criteria: to be narrowly defined obligations, prohibitions rather than positive obligations, ‘obligations’ in the strict sense of the term, obligations deriving from rules of general international law belonging to jus cogens and codified by international treaties to which a large number of States have become parties, and obligations “instrumental to the main political objectives of the present time, which in turn reflect basic moral values.”240 It seems, however, that unlike jus cogens rules, erga omnes rules do not preclude the possibility of persistent objection. 241 Scholars disagree on the sources of erga omnes rules, some stating that erga omnes rules may be created either through the process of customary international law or by treaty,242 others admitting simultaneous sources such as treaty

238 Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., p. 4; Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1997, p. 56. Ago suggested that it is sufficient that the peremptory character be accepted by the ‘basic components’ of the international community, including Eastern and Western countries, developed and developing States, as well as countries from different continents: Roberto Ago, “Droit des traités à la lumière de la Convention de Vienne, Introduction,” RCADI, Vol. 134, 1971-III, p. 323. See also his intervention reproduced in YILC, 1963-I, p. 71, para. 50. 239 Oscar Schachter, “International Law in Theory and Practice,” op. cit., pp. 208–213; Jochen Frowein, “Reaction by Not Directly Affected States to Breaches of Public International Law,” RCADI, Vol. 248, 1994-IV, pp. 405–422; Claudia Annacker, “The Legal Regime of Erga Omnes Obligations in International Law,”Austrian Journal of Public and International Law, Vol. 46, 1994, pp. 131–166. 240 Maurizio Ragazzi, “The Concept of International Obligations Erga Omnes,” op. cit., p. 215. 241 Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 233. 242 Giorgio Gaja, “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative. Analysis of Three Related Concepts,” in Joseph Weiler, Antonio Cassese and Marina Spinedi (eds.), International Crimes of States: A Tentative Analysis of the ILC’s Draft Article 19 on State Responsibility, Walter de Gruyter, Berlin, 1989, p. 152; Bruno Simma, “Does the UN Charter provide an adequate legal basis for individual or collective responses to violations of obligations erga omnes,” in Jost Delbruck (ed.), The Future of International Law Enforcement, New Scenarios—New Law?, Duncker & Humbolt, Berlin, 1993, p. 133; Claudia Annacker, “The Legal Regime of Erga Omnes Obligations in International Law,” op. cit., p. 136; Oscar Schacher, “International Law in Theory and Practice,” op. cit., p. 210; Michael

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law, customary norms, general principles of law, and UN law,243 and still others thinking that only customary international law can be the source of obligations erga omnes.244 The ICJ seems to consider the existence of two sources of erga omnes obligations: customary international law, and instruments of a universal or quasi-universal character. The ICJ recognised the following rules for having an erga omnes character: the right of self-determination,245 the prohibition of genocide,246 of acts of aggression, “principles and rules concerning the basis rights of the human person, including protection from slavery and racial discrimination,”247 the right of peoples to self-determination,248 and “certain obligations under international humanitarian law.”249 Therefore, two sources of erga omnes obligations should be used, according to the ICJ’s approach: general international law (i.e. customary international

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Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 239. See in this regard Article 1 of a Resolution adopted by the Institute of International Law in the Santiago de Compostela Session of 1989: “Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights. This international obligation, as expressed by the International Court of Justice, is erga omnes; it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world.” Brigitte Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale, Pédone, Paris, 1973, pp. 85–88; Hugh Thirlway, “The Law and Procedure of the International Court of Justice (1960–1989), Part two,” British Yearbook of International Law, Vol. LXI, 1990, p. 14; Marina Spinedi, “Les conséquences juridiques d’un fait internationalement illicite causant un dommage à l’environnement,” in Francesco Francioni and Tullio Scovazzi, International Responsibility for Environmental Harm, Graham and Trotman, Great Britain, 1991, p. 89. East Timor Case, 1995 ICJ Reports, p. 102, para. 29. Barcelona Traction, ICJ Reports 1970, p. 2, para. 33; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996 (II), p. 616, para. 31; Case Concerning Armed Activities on the Territory of the Congo (New Application), para. 71. Barcelona Traction, ICJ Reports 1970, p. 2, para. 33. Namibia, ICJ Reports 1971, p. 15, para. 126; East Timor, ICJ Reports 1995, p. 102, para. 29; Wall in the Occupied Palestinian Territory, Advisory opinion of 9 July 2004, paras. 88, 155 and 156. Wall in the Occupied Palestinian Territory, Advisory opinion of 9 July 2004, para. 155.

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law) and multilateral treaties of a universal or quasi-universal character. It can also be considered that jus cogens norms impose erga omnes obligations.250 4.2 ‘The General Principles of Law Recognised by Civilised Nations’ In the XIXth century and at the beginning of the XXth century, courts adjucating disputes between States, faced with lack of treaty or customary rules, had recourse to general principles common to the domestic legal systems of most countries. During the drafting of the Statute of the Permanent Court of International Justice (PCIJ), Root and Phillimore suggested that the Court should be empowered to apply ‘the general principles of law recognised by civilised nations’.251 According to Lord Phillimore, the general principles referred to were those ‘which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata’.252 Guggenheim also shares this view.253 Oppenheim stated that ‘the intention is to authorise the Court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States’.254 These rules cover principles general in character and upheld in the domestic legal systems of all civilised nations.255 Guido Alpa adds that the principles also entail the use of an 250 Michael Byers, “Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules,” op. cit., p. 236; Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes,” Law and Contemporary Problems, Vol. 59, No. 4, Autumn 1996, p. 63; Kenneth Randall, “Universal Jurisdiction Under International Law,” Texas Law Review, Vol. 66, 1988, pp. 829–830; Luc Reydams, “Universal Jurisdiction over Atrocities in Rwanda: Theory and Practice,” European Journal of Crime, Criminal Law and Criminal Justice, Vol. 1, 1996, p. 18; Stefan Kadelbach, “Jus Cogens, Obligations Erga Omnes and other Rules—The Identification of Fundamental Norms,” in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, op. cit., p. 25. 251 This concept was then inserted in Article 38 of the Statute of the ICJ. 252 Procès-verbaux des séances du Comité, 16 juin-24 juillet 1920, La Haye, 1920, p. 335. 253 Guggenheim, RCADI, volume 94, 1958-II, p. 78, quoted in Ian Brownlie, Principles of Public International Law., op. cit., p. 16. 254 Ibid., p. 16. 255 Antonio Cassese, “The Contribution of the International Criminal Tribunal for the Former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the Community of Nations”, in Sienho Yee and Wang Tieya, International Law in the Post-Cold War World, Essays in Memory of Li Haopei, Routledge Studies in International Law, London/New York, 2001, pp. 43–44. Alfred Verdross thinks however that the principles, apart from being part of the domestic legal systems, can also be accepted by States through a resolution of a General Assembly: Alfred Verdross, “Les principes généraux du droit applicables dans le système des sources du droit international public,” dans Recueil

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interpreter and encompass a wider range in their normative content than the other dispositions.256 Cassese adds: ‘unlike treaties and custom, this subsidiary source (that is, to be resorted to only after finding that the matter at issue is covered neither by treaty law nor by a customary rule) did not produce rules resulting from the common will or the common consent of States (as in the case of treaties), or from the convergence of interests and concerns of the majority of States (as in the case of custom). Principles were actually to be formulated by the Court by a process of induction’.257 The PICJ and the ICJ resorted rarely to the use of these principles and relied on principles of legal logic or general jurisprudence only.258 The ICJ was keen to specify that the general principles could only be applied at the international level if they were compatible with the essential features and legal institutions of the world community.259 The decline of these principles in the second half of the twentieth century is due, according to Cassese, to the emergence of a whole network of treaty rules and customary rules, which prevented the recourse to the principles. 260 However the ‘general principles of law recognised by the community of nations’ have been revitalised in the recent jurisprudence of the ICTY. The ICTY for example found that ‘the penalties associated with (crimes against

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d’études de droit international en hommage à Paul Guggenheim, Genève, IUHEI, 1968, p. 525. Guido Alpa, “General Principles of Law,” Annual Survey of International and Comparative Law, volume 1, 1994, pp. 19–20. Antonio Cassese, “The Contribution of the International Criminal Tribunal for the Former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the Community of Nations,” in Sienho Yee and Wang Tieya, International Law in the Post-Cold War World, op. cit., p. 45. For example, principle nemo judex in re sua : Mosul Boundary case, PCIJ, Series B, no. 12, p. 32; Principle of the duty of reparation for international wrongs: Chorzow Factory (Merits) case, PCIJ, Series A, no. 17, p. 29. For a complete review of the jurisprudence of both Courts regarding the concept of principles, see André Blondel, “Les principes généraux de droit devant la Cour permanente de Justice Internationale et la Cour internationale de Justice,” in Recueil d’études de droit international en hommage à Paul Guggenheim, Genève, IUHEI, 1968, pp. 201–236. International Status of South West Africa, ICJ Reports 1950, pp. 148–149 (separate opinion of Judge MacNair); Genocide Convention, ICJ Reports 1951, p. 21; South West Africa case, ICJ Reports 1966, p. 47; Barcelona Traction case, ICJ Reports 1970, pp. 66–67. Antonio Cassese, “The Contribution of the International Criminal Tribunal for the Former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the Community of Nations,” op. cit., p. 46.

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humanity) under international law and national law, . . . are expressions of general principles of law recognised by all nations’.261 The ICTY also used this concept to find an accurate definition of rape,262 and recognised the principles of cumulation of offences,263 proportionality,264 and stare decisis.265 Still, these principles seem to remain procedural guidelines for international tribunals.266 4.3 The General Principles of International Law The general principles of international law are a different notion.267 According to Bing Chen, “this part of international law does not consist . . . in specific rules formulated for practical purposes, but in general propositions underlying the various rules of law which express the essential qualities of juridical truth itself, in short of law”.268 It is therefore a general norm, which has a constitutive function in a specific legal system.269 Schwarzenberger considers that such principles should fulfil three conditions. Firstly, the principle must be especially significant for international law. Secondly, the principle must stand out from others by covering a relatively wide range of rules of international law which appear to fall naturally under its heading. Thirdly, the principle must be one which is so typical of international law that it is an essential part of any known system of international law.270

261 262 263 264 265 266 267

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Erdemovic, Judgement of 29 November 1996, para. 26. Furundzija, Judgement of 10 December 1998, paras. 177 and 181. Kupreskic et al., Judgement of 14 January 2000, paras. 680–695. Blaskic, Judgement of 3 March 2000, para. 796. Aleksovski, Appeals Judgement of 24 March 2000, para. 98. It has recognised this principle as a general principle of international law however. N. G. Onuf and Richard K. Birney, “Peremptory Norms of International Law,” op. cit., p. 191. Georges Abi-Saab, “Les sources du droit international : un essai de déconstruction,” in Boutros Boutros-Ghali (ed.), Le droit international dans un monde en mutation: Liber Amoricum en hommage au Professeur Eduardo Jiménez de Aréchaga, Motevideo, Fundacion de cultura universitaria, 1994, p. 34; Michel Virally, “Le rôle des principes dans le développement du droit international,” in Recueil d’études de droit international en hommage à Paul Guggenheim, Genève, IUHEI, 1968, p. 532. Bing Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens and Sons, 1953, p. 24. Bela Vitanyi, “La signification de la ‘généralité’ des principes de droit,” Revue générale de droit international public, Tome 80, 1976, p. 538. See also Erich Kaufmann, “Règles générales du droit de la paix,” RCADI, volume 54, 1934, p. 313 and Stefan Glaser, “Décolonisation et succession aux traités,” Revue générale de droit international public, Tome 74, 1970, p. 917. Georg Schwarzenberger, “The Fundamental Principles of International Law,” RCADI, Volume 87, 1955, p. 204.

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This term may refer to rules of customary law,271 to treaty law, to general principles of law as in Article 38, to natural law,272 or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal analogies. Examples of this type of general principles are the principles of consent, sovereignty, reciprocity, equality of States, finality of awards and settlements, the legal validity of agreements, good faith, domestic jurisdiction, self-defence and the freedom of the seas.273 Core principles of humanitarian law include according to the International Court of Justice “elementary considerations of humanity, even more exacting in peace than in war”274 or “fundamental general principles of humanitarian law” identified to the “minimum yardstick” of common Article 3 of the Geneva Conventions, but applicable in all circumstances, including international armed conflicts.275 These principles are primarily abstractions from a mass of rules and have been so long and so generally accepted as to be no longer directly connected with State practise. Certain fundamental principles have been set apart as overriding principles of jus cogens.276

271 “Les principes en cause sont, en réalité, des règles de droit d’une grande généralité, donc très abstraites, assez fréquemment invoquées et appliquées dans la pratique pour que leur existence et leur validité ne puissent être mises en doute, et qui sont, par conséquent, d’origine coutumière”: Michel Virally, “Le rôle des principes dans le développement du droit international,” op. cit., p. 532. See also André Blondel, “Les principes généraux de droit devant la Cour permanente de Justice Internationale et la Cour internationale de Justice,” op. cit., p. 204. 272 Louis-Erasme Le Fur, “Règles générales du droit de la paix,” RCADI, Volume 54, 1935, p. 205. 273 Georg Schwarzenberger, “The Fundamental Principles of International Law,” op. cit., pp. 195–383; Ian Brownlie, Principles of Public International Law, op. cit., pp. 18–19. 274 Corfu Channel, Preliminary Objection, Judgement, I.C.J. Reports 1947–1948, p. 22. 275 Nicaragua, ICJ Reports 1986, pp. 112–114. 276 Ibid., pp. 18–19.

chapter 2

The Red Cross and Red Crescent Movement: A Position Affirmed in International Humanitarian Law Treaties The Red Cross and Red Crescent Movement is at the origin of IHL treaties and therefore has been represented in such treaties. The Movement’s mission is to prevent or alleviate human suffering, to protect life and health, to ensure respect for humankind, to work for the prevention of disease and the promotion of health, to encourage voluntary service, and to foster a universal sense of solidarity toward all those in need of the Movement’s protection and assistance.1 The Movement is guided by the same seven fundamental principles that serve as the cornerstone of its mission: humanity, impartiality, ­neutrality, independence, voluntary service, unity, and universality. The three components of the Red Cross and Red Crescent Movement are the ICRC (ICRC), the International Federation of Red Cross and Red Crescent Societies (Federation), and the National Societies of Red Cross and Red Crescent (National Societies). The ICRC, the Federation, and the National Societies are independent bodies.2 The characteristics and statuses of these three organisations are successively detailed in this Chapter. The Chapter will not look at the International Fact-Finding Commission created by Article 90 of Additional Protocol I of 1977, as a treaty body that cannot fit the definition of a NGO.3 This study will also disregard the Central 1 As stated on the ICRC’s website: ICRC, Components and bodies of the International Movement of the Red Cross and Red Crescent, 30 November 2007, available at: http://www.icrc.org/. 2 The work of both the ICRC and the Federation is governed by an agreement signed in Spain in November 1997, known as the Seville Agreement, which is available at: http://www.red cross.int/. For additional information on the organisation of the Movement, see Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006, available at: http:// www.icrc.org/. 3 The International Humanitarian Fact-Finding Commission is a permanent body available to the international community to investigate grave violations of IHL. Based in Berne, the permanent Fact-Finding Commission consists of 15 experts. The Swiss Federal Department of Foreign Affairs manages its secretariat. Before a State can take a case to the fact-finding commission, it must file a declaration with the Swiss Federal Council, which acts as the Depositary of the Geneva Conventions and Protocols. On this topic, see in particular J. Ashley Roach,

© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004269668_��4

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Prisoners of War Information Agency,4 and the Central Information Agency for protected persons.5 This choice is based upon the fact that these bodies are part of the ICRC’s structure and are not independent organisations. 1

The ICRC

In 1863, Henry Dunant founded the “International Committee for Relief to the Wounded,” known since 1875 as the ICRC. The ICRC is now mentioned in more than sixty articles of IHL treaties and texts and is also cited in numerous United Nations Resolutions.6 The ICRC is mentioned in provisions concerning both international and non-international armed conflicts. 1.1 References to the ICRC in IHL Treaties The first reference to the ICRC can be found in the 1927 Convention that created an International Relief Union to provide aid in case of Natural Calamities.7

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“La Commission internationale d’établissement des faits—L’Article 90 du Protocole I additionnel aux Conventions de Genève de 1949,” Revue internationale de la Croix-Rouge, mars–avril 1991, No. 788, Genève, pp. 178–203; Françoise Hampson, “Fact-Finding and the International Fact-Finding Commission,” in Hazel Fox and Michael Meyer (eds.), Armed Conflict and the New Law, Vol. II, London, The British Institute of International and Comparative Law, 1993, pp. 53–82; Erich Kussbach, “Commission internationale d’établissement des faits en droit international humanitaire,” Revue de droit pénal militaire et de droit de la guerre, Vol. 20, No. 1–2, 1981, pp. 89–111. Organisation created by Article 79 of the 1929 Geneva Convention on Prisoners of War and Article 123 of the Third Geneva Convention. Organisation mentioned in Article 140 of the Fourth Geneva Convention. On this subject, see Monique Katz, “L’Agence centrale de recherches du CICR,” Revue internationale de la CroixRouge, octobre 1977, No. 706, Genève, pp. 452–458; Comité International de la Croix-Rouge, “L’Agence centrale de recherches aujourd’hui,” Revue internationale de la Croix-Rouge, marsavril 1985, No. 752, Genève, pp. 120–122. For the first United Nations resolutions mentioning the ICRC, see “Le Comité international de la Croix-Rouge et les Nations Unies (Résolutions adoptées par l’Assemblée générale des Nations Unies dans sa 5ème session ordinaire),” Revue internationale de la croix-rouge, No. 387, mars 1951, pp. 176–190. See also the references to the ICRC in section 2 of the 1968 Resolution XXIII Human Rights in Armed Conflicts adopted by the International Conference on Human Rights, and in section 2 of the 1968 Resolution 2444 (XXIII) of the United Nations General Assembly entitled Respect for Human Rights in Armed Conflicts. The ICRC is mentioned in Articles 5 and 14 of the Statute annexed to the Convention: see League of Nations, International Conference for the Creation of an International Relief Union, Convention and Statute Establishing an International Relief Union, Geneva, 12 July 1927.

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The 1929 Convention Relative to the Treatment of Prisoners of War stated that the ICRC might propose the establishment of a Central Agency of Information regarding prisoners of war,8 and provided it with the opportunity to intervene in the event of a dispute regarding the application of the Convention.9 The ICRC was then mentioned in the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality in reference to its role in supporting the Protecting Powers10 in case of disagreement regarding the application of the Convention.11 It is on the limited legal basis of the 1929 Convention that the ICRC established the major part of its vast activities during the Second World War. When the ICRC prepared for the revision of the Geneva Conventions in 1945, it tried to obtain a more solid legal basis, considering the development of its activities during the war. Having been narrowly associated with the work of the 1949 Diplomatic Conference and having written the drafts, the ICRC could influence the decisions.12 During the 1946 Diplomatic Conference, the ICRC suggested that it should be mentioned specifically among the recognised aid societies in the Geneva Conventions, as well as in the texts governing the United Nations.13

The historic development of this Convention can be found in: Vers l’Union Internationale Contre les Calamités, Le Projet Ciraolo, “Fédération internationale de Secours aux Populations frappées de Calamités,” Historique et Documents, Commission Mixte du Comité International de la Croix-Rouge et de la Ligue des Sociétés de la Croix-Rouge, Paris, 1925. The Convention has been welcomed at the Thirteenth International Conference of the Red Cross in 1928: see “Résolutions et voeux adoptés par la XIIIème Conférence internationale de la Croix-Rouge, La Haye, 23–27 Octobre 1928,” International Review of the Red Cross, No. 313, September 1928, pp. 1015–1016. 8 The last paragraph of Article 79 states that “these provisions shall not be interpreted as restricting the humanitarian work of the International Red Cross Committee.” It was inserted at the request of the American delegation, which wanted to specify that the creation of the Agency was only one of the expressions of the ICRC’s activities: see RenéeMarguerite Frick-Cramer, “Le Comité international de la Croix-Rouge et les Conventions internationales pour les prisonniers de guerre et les civils,” Revue internationale de la croix-rouge, No. 488, avril 1943, p. 399. 9 Article 87. 10 A Protecting Power is a State instructed by one of the parties to a conflict to safeguard its interests. See also Chapter 3. 11 Articles 24 and 25 of the 1934 Convention. 12 Jean Pictet, “Le Comité international de la Croix-Rouge dans les nouvelles Conventions de Genève,” Revue internationale de la croix-rouge, No. 425, mai 1954, p. 354.  13 ICRC, Report on the Work on the Preliminary Conference of National Red Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross, Geneva, July 26–August 3, 1946 (hereafter Report on the Work on the Preliminary Conference of

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Therefore, the Diplomatic Conference of 1949 confirmed and extended the ICRC’s prerogatives, and the ICRC was cited in several articles of the First,14 Second,15 Third,16 and Fourth Geneva Conventions.17 The ICRC is also mentioned in the 1977 Additional Protocol I18 and Protocol II,19 as well as in the 2005 Additional Protocol III.20 According to these articles, the ICRC can offer its services to the parties in a conflict and undertake humanitarian activities for the protection and relief of wounded and sick individuals, medical personnel, prisoners of war, and other protected persons. Moreover, the ICRC is cited in the 1989 Convention against the Recruitment, Use, Financing, and Training of Mercenaries,21 the 1994 San Remo Manual,22 the 1996 Protocol II on Prohibitions or Restrictions on the Use of Mines, BoobyTraps, and Other Devices,23 the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction,24 the 1999 Protocol II for the Protection of Cultural Property in the Event of Armed Conflict,25 and the 2003 Protocol on Explosive Remnants of War.26 These Articles provide protection to the ICRC in its activities and support for its relief activities in favour of civilians, including demining and rehabilitating victims of explosive remnants of war, its right to visit prisoners, and its participation in relevant international conferences.

14 15 16 17 18 19

20 21 22 23 24 25 26

National Red Cross Societies, 1946), International Red Cross Committee, Geneva, 1947, pp. 124–125. Articles 3, 9, 10, 11, and 23. Articles 3, 9, 10, and 11. Articles 3, 9, 10, 11, 56, 72, 73, 75, 79, 81, 123, 125, 126, and Annex II. Articles 3, 10, 11, 12, 14, 30, 59, 61, 76, 96, 102, 104, 108, 109, 111, 140, 142, 143, and Annex II. Articles 5, 6, 33, 78, 81, 97, and 98. Article 24. The reference to the ICRC in Articles 33, 78 and 81 of Protocol I was added at the 1974–1977 Diplomatic Conference, but the other references to the ICRC in Protocols I and II were already mentioned in the draft Articles submitted by the ICRC to the Diplomatic Conference: ICRC, “Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Geneva, June 1973” (hereafter “Draft Additional Protocols”), in Official Records of the Diplomatic Conference on the Reaffirmation and Development of IHL Applicable in Armed Conflicts, Geneva (1974–1977) (hereinafter Official Records), Federal Political Department, Bern, 1978, Vol. I, pp. 4–27 and 45. Articles 3, 4, and 13. Article 10. Paras. 103 and 175. Articles 4, 5, and 12(4). Articles 6, 11, 12, and 13. Article 27. Article 8.

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1.2 Definition of the ICRC in IHL Treaties The ICRC is defined as an “impartial humanitarian organisation/body” or “humanitarian organisation” in various provisions.27 The Protocol I and the San Remo Manual added that the ICRC offers all guarantees of impartiality and efficacy.28 In addition, at the 1974–1977 Diplomatic Conference, Germany proposed a sentence in Protocol II proposing that the parties to the conflict shall facilitate visits to protected persons “by an impartial humanitarian body such as the ICRC,” but it was not adopted.29 Similarly, the ICRC is cited in several articles30 as an organisation with “humanitarian activities/work” for the protection and assistance of protected persons, and it is specifically cited as an “organisation/body/agency giving assistance/relief to the prisoners of war/internees” in the 1949 Geneva Conventions.31 Moreover, Article 1 of the Statutes of the ICRC provides that it “is an independent humanitarian organisation.”32 Finally, provisions in several treaties have added that the ICRC’s activities are subject to the approval of the parties of the conflict concerned.33 Therefore, in IHL treaties, the ICRC is considered to be an impartial organisation that engages in humanitarian activities, which are subject to the approval of the parties of the conflict.

27

Common Articles 3, 9/9/9/10 and 10/10/10/11 of the Geneva Conventions; Articles 59, 61, and 96 of the Fourth Geneva Convention. 28 Article 5 of Protocol I and Article 103 of the 1994 San Remo Manual. 29 Sentence incorporated into draft Article 5 of Protocol II. See Official Records, Vol. IV, CDDH/I/236, p. 25. 30 Article 25 of the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality; Article 79 of the 1929 Convention on the prisoners of war; common Articles 9/9/9/10 and 10/10/10/11 to the 1949 Geneva Conventions; Article 123 of the Third Geneva Convention; Article 140 of the Fourth Geneva Convention and Article 81 of Protocol I. Article 30 of the Fourth Geneva Convention implies also that the ICRC is an “organization that might assist [the protected persons].” 31 Articles 56, 72, 73, 75, and 79 of the Third Geneva Convention; Articles 102, 104, 108, 109, 111 and Article 8 of Annex II of the Fourth Geneva Convention. 32 ICRC, Statutes of the ICRC, 8 May 2003, available at:  http://www.icrc.org/. 33 Article 88 of the 1929 Convention Relative to the Treatment of Prisoners of War; Article 25 of the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality; Article 9/9/9/10 common to the Geneva Conventions; Article 75 of the Third Geneva Convention; Articles 111 and 143 of the Fourth Geneva Convention; Article 81 of Protocol I and Article 12 of the 1996 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices.

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1.3 Main Reasons for the Mention of the ICRC in IHL Treaties As we have seen, the ICRC is widely mentioned in IHL texts, particularly in the 1949 Geneva Conventions and 1977 Additional Protocols. There are several reasons for this. One reason is to recognise the roles that the ICRC played in the First and Second World Wars, as well as in various civil wars. In particular, the ICRC’s activities in the relief sphere during the Second World War assumed enormous proportions.34 For this reason, its role has been recognised in the provisions of several treaties, as well as in resolutions of the Red Cross and Red Crescent Conferences.35 Consequently, during the discussions at the Geneva Conference, some delegations even wanted the ICRC to be the only organisation mentioned in the treaties, apart from the Protecting Powers.36 It was also suggested at the Diplomatic Conference in 1949 that the mention of the ICRC in Article 125 of the Third Geneva Convention be deleted, but the delegate from Venezuela stated that it should be retained “in view of the activity of that organisation.”37 During the discussion of Article 10/10/10/11 of the 1949 Geneva Conventions at the Diplomatic Conference, the United Kingdom delegation paid a tribute to the courage, patience, and unselfishness with which the ICRC had pursued its humanitarian effort.38 The French delegate also stated that “the ICRC does not act by virtue of a mandate but according to moral laws, which go far beyond all mandates.”39 At the 1974–1977 Diplomatic Conference, Belgium produced an explanation of vote on Article 5 of Protocol I, which stated that the designation of the ICRC as a body offering its good offices for the designation of a Protecting Power “bears witness to the decades of confidence

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36 37 38 39

Jean Pictet, The Geneva Conventions of 12 August 1949: Commentary, ICRC, Geneva, 1952, Article 30 of the Fourth Geneva Convention (hereinafter Commentary Article 30 of the Fourth Geneva Convention), pp. 215–216; Commentary Article 125 of the Third Geneva Convention, p. 600; Commentary Article 142 of the Fourth Geneva Convention, p. 565. See also the Report of the ICRC on its activities during the Second World War, Vol. III, Geneva, 1948. For example, the XVIth International Red Cross Conference in 1938 passed a Resolution mentioning that “The Conference, (. . .) pays tribute to the work spontaneously undertaken by the ICRC in hostilities of the nature of civil war, and relies on the Committee to continue its activity in this connection”. Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Berne, 2005 (hereinafter Final Record), Vol. II-A, p. 730. Final Record, Committee II, Vol. II-A, p. 301. Final Record, Joint Committee, Vol. II-B, p. 20. Ibid., Joint Committee, Vol. II-B, p. 22.

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that States have shown in [the] ICRC for its devotion to the humanitarian cause.”40 Several Articles in the 1949 Geneva Conventions were indeed directly inspired by the activities of the ICRC during the Second World War. To a large extent, they also represented a codification of functions that the ICRC had performed during that period.41 For example, the wording of Articles 59 to 62 of the Fourth Geneva Convention was inspired by the large-scale relief action carried out in Greece by the ICRC from 1942 to 1945.42 Articles 109 and 111 of the Fourth Geneva Convention were based upon the ICRC’s experience, which led to a preference for the sending of collective shipments43 and the ICRC’s leading role in the transport of relief.44 Article 9/9/9/10 common to the 1949 Geneva Conventions is based upon the ICRC’s relief activities during the Second World War.45 Article 75 of the Third Geneva Convention codified the resort by the ICRC to the use of vessels bearing the Red Cross emblem.46 Article 14 of the Fourth Geneva Convention recognised the creation of hospital and safety zones in occupied areas, proposed by the ICRC during the Second World War.47 Finally, Articles 123 of the Third Convention and 140 of the Fourth Convention provided for the possibility of organising a Central Information Agency, and Article 30 of the Fourth Convention ensured the right of protected persons to apply to the ICRC for assistance.48 Due to the ICRC’s experience in providing relief to victims of war, delegates at the Conference of Government Experts in 1947 proposed that the special 40

See Annex to the summary record of the thirty-seventh plenary meeting, Explanations of votes in Official Records, Vol. VI, p. 76. 41 Hans Haug, Humanity for All: The International Red Cross and Red Crescent Movement, Henry Dunant Institute/Paul Haupt Publishers, Berne/Stuttgart/Vienna, 1993, p. 76. 42 See Rapport final de la Commission de gestion pour les secours en Grèce sous les auspices du Comité international de la Croix-Rouge, Athens, 1949; Commentary Article 59 of the Fourth Geneva Convention, p. 320. 43 Commentary Article 109 of the Fourth Geneva Convention, p. 456. 44 Commentary Article 111 of the Fourth Geneva Convention, p. 464. 45 Commentary Article 9 common of the Geneva Conventions, p. 106; Final Record, Vol. II-B, pp. 20–21, 29, 60, 111 and 346. 46 Commentary Article 75 of the Third Geneva Convention, p. 368; Report of the ICRC on its activities during the Second World War, op. cit., p. 6, Vol. III, pp. 124–165 and 127–158. 47 Commentary Article 14 of the Fourth Geneva Convention, p. 123. 48 Claude Pilloud and Jean Pictet, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, edited par Yves Sandoz, Christophe Swinarski and Bruno Zimmer, ICRC/Martinus Nijhoff, Geneva/Dordrecht, 1987, Article 81 of Additional Protocol I (hereinafter Commentary Article 81 of Protocol I ), p. 938, para. 3309.

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position of the ICRC be recognised and respected at all times. This mention was then included in Articles 125 of the Third Convention and 142 of the Fourth Convention.49 As seen previously, the ICRC is specifically mentioned in the Geneva Conventions as an “organisation/body giving assistance to the prisoners of war/internees.” Indeed, the ICRC played an important role in this field during the First and Second World Wars. In 1870, it created the Central Prisoners of War Agency, which was legally recognised in Article 79 of the 1929 Convention and still exists today.50 The Agency collected information on prisoners of war, helped to trace missing persons, and re-established contact between prisoners and their families. During the Second World War, the Agency distributed approximately 40,000,000 cards, visited 11,000 prisoner of war camps, and distributed 450,000 tons of relief for prisoners of war.51 In addition, the ICRC addressed collective relief supplies to prisoners52 and prisoners’ representatives that helped them keep in close and constant touch with the ICRC.53 At the 1949 Diplomatic Conference, the delegate of the Holy See also stated that the ICRC accomplished a magnificent work for the prisoners of war.54 For similar reasons, Articles 126 of the Third Convention and 143 of the Fourth Convention provided the ICRC access to prisoners of war and to civilians deprived of their liberty. Another reason for the numerous mentions of the ICRC in IHL texts is the fact that the organisation is “called by its statutes and traditions to intervene in cases of conflict.”55 The ICRC is mentioned in Article 9/9/9/10 common of the Geneva Conventions “by reason of its special character and its earlier initiatives.”56 The ICRC is also cited in Article 61 of the Fourth Geneva Convention because of “its past action and experience in this field.”57 Finally, the fact the ICRC shall be consulted if a High Contracting Party proposes amendments to the Additional Protocols I and II “follows logically from its mandate” and is in “recognition of its role in the codification and development 49 50 51 52 53 54 55 56 57

Final Record, Federal Political Government, Berne, Vol. II-A, pp. 300–302 and 341–342. Commentary Article 123 of the Third Geneva Convention, pp. 581–582; Commentary Article 9 common of the Geneva Conventions, pp. 103–104. Commentary Article 9 common of the Geneva Conventions, p. 106. Commentary Article 72 of the Third Geneva Convention, pp. 353–354. Commentary Article 79 of the Third Geneva Convention, p. 391. Final Record, Plenary Meeting, Vol. II-B, p. 323. Commentary Article 3 common of the Geneva Conventions, p. 59. Commentary Article 9 common of the Geneva Conventions, p. 108. Commentary Article 61 of the Fourth Geneva Convention, p. 326.

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of IHL.”58 The ICRC was mentioned in Article 81 of Protocol I, in view of its humanitarian mandate.59 Finally, the ICRC is often cited in the Geneva Conventions because it is a neutral, humanitarian, and impartial organisation. According to the commentaries on Articles 3 and 9/9/9/10 common of the Geneva Conventions, the ICRC is mentioned in these Articles “as an example of what is meant by a humanitarian and impartial organization.”60 The commentary on Article 125 of the Third Geneva Convention also states that “the special position of the International Committee . . . arises . . . from its traditional neutrality and impartiality, which are the basis for its unique position as [a] neutral intermediary.”61 The commentaries on Articles 23 of the First Geneva Convention and 14 of the Fourth Geneva Convention on the creation of hospital and safety zones both mention that these tasks demand “the existence of a neutral intermediary acting between the belligerents. . . . It was natural to think in this connection of the Protecting Powers and of the ICRC.”62 The commentary on Article 30 of the Fourth Geneva Convention adds that “because of its traditional neutrality and impartiality and its independence, [the ICRC] is in a unique position as a neutral intermediary for all categories of protected persons.”63 The commentary on Article 59 of the Fourth Geneva Convention states similarly that “the ICRC is mentioned both on account of its own special qualifications and as an example of a humanitarian organization whose impartiality is assured.”64 Finally, the ICRC is mentioned in Article 61 of the Fourth Geneva Convention because of its “character as a neutral intermediary.”65 As seen previously, Article 5 of Protocol I also mentions the ICRC as an “organization which offers all guarantees of impartiality and efficacy,” and Article 103 of the San Remo Manual refers to the ICRC as “a humanitarian organization which offers guarantees of impartiality.” As previously stated, the ICRC is also mentioned in the Geneva Conventions and Additional Protocols because it played a major role in the elaboration of 58 59 60 61 62 63 64 65

Commentary Article 97 of Additional Protocol I, p. 1095; Commentary Article 24 of Additional Protocol II, p. 1499. Official Records, Vol. VIII, CDDH/I/SR.37, p. 385. Commentary Article 3 common of the Geneva Conventions, Convention I, pp. 59–60; Commentary Article 9 common of the Geneva Conventions, p. 108. Commentary Article 125 of the Third Geneva Convention, p. 601. Commentary Article 23 of the First Geneva Convention, pp. 215–216; Commentary Article 14 of the Fourth Geneva Convention, p. 128. Commentary Article 30 of the Fourth Geneva Convention, p. 215. Commentary Article 59 of the Fourth Geneva Convention, p. 321. Commentary Article 61 of the Fourth Geneva Convention, p. 326.

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these treaties.66 The ICRC convened the Conference of Red Cross experts in Geneva in 1946 and the conference of Government experts in 1947, and it prepared the drafts submitted to the XVIIth International Red Cross Conference at Stockholm in 1948. For these reasons, the delegations at the 1949 Diplomatic Conference strongly supported the view that the ICRC should participate in the Conference as an expert.67 1.4 Mandate of the ICRC 68 The tasks of the ICRC in international armed conflicts are to visit and interview without witness prisoners of war and interned civilians;69 to provide relief to

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The ICRC prepared the projects of 10 IHL Conventions; see Marco Sassòli, “La contribution du CICR à la formation et à l’application des normes internationales,” dans Mario Bettati et Pierre-Marie Dupuy (ed.), Les ONG et le Droit international, Economica, Paris, 1986, pp. 97–99. For example, the ICRC organised a meeting of experts in 1945, then a preliminary Conference of the National Societies in 1946, then a Conference of governmental experts in 1947. Finally, revised projects were sent by the ICRC to States and National Societies to prepare the 17th International Conference of Stockholm, which adopted the texts as the basis for the Diplomatic Conference of 1949. For the Protocols in 1969, the ICRC consulted eighteen experts and then gave a questionnaire to more than fifty personalities; they also consulted the United Nations, several experts, and the National Societies. The ICRC then organised three conferences of governmental experts in 1971, 1972, and 1973. In 1974, based upon these consultations, the ICRC developed two projects of Protocols that were addressed to the States Parties to the Geneva Conventions in 1974. The ICRC played a very active role as an expert during the 1974 Diplomatic Conference for the elaboration of the Protocols. In this regard, see Jean Pictet, “La formation du droit international humanitaire,” Revue internationale de la croix-rouge, No. 751, janvier–février 1985, pp. 3–23 and Philippe Bretton, “Le Comité international de la Croix-Rouge et les Protocoles de Genève du 10 juin 1977,” dans Mario Bettati et Pierre-Marie Dupuy (ed.), Les ONG et le Droit international, op. cit., pp. 61–69. Final Record, Plenary Meeting, Vol. II-A, p. 15. For further information, see François Bugnion, The ICRC and the Protection of War Victims, ICRC/Macmillan, Geneva/Oxford, 2003; François Bugnion, “The ICRC and the Development of IHL,” Chicago Journal of International Law, Vol. 5, 2004; David P. Forsythe, The Humanitarians: The ICRC, Cambridge University Press, Cambridge, 2005; Véronique Harouel, Histoire de la Croix-Rouge, PUF, Paris, 1999; Jean Pictet, Une institution unique en son genre: Le Comité international de la Croix-Rouge, Henry Dunant Institute, Geneva, 1985; Pierre Boissier, History of the ICRC: From Solferino to Tsushima, Henry Dunant Institute, Geneva, 1978; Jacques Freymond, Guerres, Révolutions, Croix-Rouge: Réflexions sur le rôle du Comité international de la Croix-Rouge, IUHEI, Geneva, 1976. Article 126 of the Third Geneva Convention and Article 143 of the Fourth Geneva Convention.

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protected civilians, prisoners of war, and residents of occupied territories;70 and to search for missing persons, trace prisoners of war and civilians, and forward messages to their families.71 The ICRC also offers its good offices to facilitate the creation of hospital and safety zones72 and can function as a substitute for the Protecting Powers.73 States also request that the ICRC prepare developments in IHL.74 In addition, the ICRC has a right of initiative whereby, with the agreement of the authorities concerned, it may take any action that it considers necessary to further the interests of victims of armed conflict and the application of IHL.75 Finally, the ICRC can play a role in demining and rehabilitating victims of explosive remnants of war, and it also participates in related international conferences.76 2

The Federation of Red Cross and Red Crescent Societies

The Federation is mentioned in provisions covering both international and non-international armed conflicts, which gives her a specific mandate.

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Articles 73 and 125 of the Third Geneva Convention; Articles 59, 61, and 142 of the Fourth Geneva Convention. Article 123 of the Third Geneva Convention; Article 140 of the Fourth Geneva Convention; Article 33 of Protocol I. Article 23 of the First Geneva Convention and Article 14 of the Fourth Geneva Convention. Articles 9/9/9/10 common of the Four Geneva Conventions. See Article 5 of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross in Geneva in October 1986. The ICRC’s right of initiative is recognised, with regard to international armed conflicts, in Article 9 of the First, Second and Third Geneva Conventions, and in Article 81 of Additional Protocol I. With regard to non-international armed conflict, it is mentioned in Article 3 common to the four Geneva Conventions. Article 5 of the Statutes of the Movement sanctions it regarding internal armed conflicts and strife by providing that: “the ICRC may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediate, and may consider any question regarding examination by such an institution.” Articles 4, 5, and 12(4) of the 1996 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices; Articles 6, 11, 12, and 13 of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction; Article 8 of the 2003 Protocol on Explosive Remnants of War.

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2.1 References to the Federation in IHL Texts The League of the Red Cross Societies (the League) was established in 1919 to coordinate the National Red Cross and Red Crescent Societies.77 The League was renamed in October 1983 the League of Red Cross and Red Crescent Societies and, in November 1991, the International Federation of Red Cross and Red Crescent Societies (the Federation).78 Several articles of IHL treaties mention the Federation. It was first mentioned in the 1927 Convention in relation to the creation of an International Relief Union in case of Natural Calamities. At that time, the League was mentioned because of the support that it would give to this Union.79 Article 81 of Protocol I then mentioned “the assistance which Red Cross (Red Crescent, Red Lion, and Sun) organizations and the League of Red Cross Societies extend to the victims of conflicts.” From the beginning of the preparatory studies for the Protocols, several National Societies wished to see a provision confirming their position in IHL treaties.80 As several governments had expressed their support, the ICRC agreed for them to present this proposal to the Diplomatic Conference. Thus, the draft of Additional Protocol submitted by the ICRC did not contain a special provision on Red Cross organisations.81 The XXIInd International Conference of the Red Cross 77

Dharma Pratap Verma, “Role of distinct bodies in promoting respect for IHL with particular attention to the Independent Commission on International Humanitarian Issues,” op. cit., p. 417. 78 See International Federation of the Red Cross and Red Crescent, History, available at: http://www.ifrc.org/. 79 See Articles 5 and 14 of the Statute annexed to the Convention. League of Nations, International Conference for the Creation of an International Relief Union, Convention and Statute Establishing an International Relief Union, Geneva, July 12th, 1927; Jean Pictet, “Le droit international et l’activité du Comité international de la Croix-Rouge en temps de guerre,” Revue internationale de la croix-rouge, No. 486, janvier 1943, p. 134. 80 ICRC, Conference of Red Cross Experts on the Reaffirmation and Development of IHL Applicable in Armed Conflicts (The Hague, 1–6 March 1971), Report on the Works of the Conference, Geneva, April, 1971, pp. 57–59; ICRC, Conference of Red Cross Experts on the Reaffirmation and Development of IHL Applicable in Armed Conflicts (Vienna, March 20–24, 1972, second session), Report on the Works of the Conference, Geneva, April 1972, p. 29; ICRC, Conference of Government Experts on the Reaffirmation and Development of IHL Applicable in Armed Conflicts, Geneva, 24 May–12 June, 1971, Report on the work of the Conference, Geneva, August 1971, pp. 26 and 31; ICRC, Conference of Government Experts on the Reaffirmation and Development of IHL Applicable in Armed Conflicts, Geneva, 3 May–3 June 1972 (second session), Report on the work of the Conference, Geneva, July 1972, Vol. I, p. 52. 81 Commentary Article 81 of Protocol I, p. 937, para. 3305.

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(Teheran, 1973) adopted Resolution XV, which requested that the Diplomatic Conference be held in Geneva in 1974. This resolution introduced into the Draft Protocols “the appropriate provisions to strengthen the role and facilitate the humanitarian activities of National Societies and of their Federation.”82 At the Diplomatic Conference in 1974–1977, there were lengthy discussions on Article 81.83 These discussions continued in 1975 and concluded with the presentation of a new Article, which became Article 81. In this text, the League was added as the coordinator of the assistance contributed by the National Societies. The delegate from the League stated at the Conference that the number of National Societies dramatically rose after the Geneva Conventions were signed, and now the League was virtually worldwide.84 In particular, the delegates from the Democratic Republic of Vietnam and from Belgium welcomed the explicit mention of the League in this text, in view of its increased powers and obligations.85 This proposal for a new article had 32 sponsors,86 and it was finally adopted by Committee I in 1975 and during a plenary meeting in 1977.87 Draft Article 22 of Protocol I also contained a reference to the League, but the Main Committee in the 1974–1977 Diplomatic Conference deleted it without explanation.88 In addition, a provision of the First Geneva Convention that refers to “International Red Cross Organisations” applies to the Federation and the ICRC,89 giving them the right to use the emblem of the Red Cross. Since the beginning of the 1990s, several treaties have referred to the Federation. One provides for the protection by High Contracting Parties of any humanitarian mission of the Federation against the effects of mines, boobytraps, and other devices.90 Another provides that assistance for the care, rehabilitation, and social and economic reintegration of mine victims and for

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Commentary Article 81 of Protocol I, pp. 937–938, para. 3306. Commentary Article 81 of Protocol I, p. 938, para. 3307. Official Records, Vol. VIII, CDDH/I/SR.37, pp. 386–387. Ibid., Vol. VIII, CDDH/I/SR.37, pp. 388–389. Ibid., Vol. III, CDDH/I/263 and Add.1, pp. 311–312. Commentary Article 81 of Protocol I, p. 938, para. 3308. Official Records, Vol. VI, CDDH/SR.38, p. 85. Article 44 of the First Geneva Convention. See the discussions at the 1949 Diplomatic Conference on the meaning of the term “Red Cross Societies” for the League and the ICRC, Final Record, Committee I, Vol. II-A, pp. 135–137, 198 and 216. Article 12 of the 1996 Second Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps, and Other Devices.

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mine awareness programs may be provided through the Federation.91 Another states that assistance may be provided through the Federation for the marking, clearance, removal, or destruction of explosive remnants of war, for risk education of civilian populations, and for the care, rehabilitation, and social and economic reintegration of victims of explosive remnants of war.92 Finally, the Federation is mentioned in the 2005 Additional Protocol III to the 1949 Geneva Conventions, since it had the right to use the new distinctive emblem.93 The League is also mentioned in a resolution of the UN General Assembly of 1965 on the organisation of relief in times of catastrophes.94 Therefore, in IHL texts, the Federation is mentioned as an organisation providing support to victims of natural disasters and victims of conflicts, including through its coordinating role in the activities of National Societies and through an organisation entitled to use the Red Cross emblem. 2.2 Mandate of the Federation The mandate of the Federation is to facilitate and promote humanitarian activities carried out by the National Societies. It directs and coordinates international assistance to victims of natural and technological disasters, to refugees, and in health emergencies.95 It acts as the official representative of its member Societies in the international field. It promotes cooperation among National Societies and works to strengthen their capacity to carry out effective disaster preparedness and health and social programmes. The Federation’s work focuses on four core areas: humanitarian values, disaster response, disaster preparedness, and health and community care.96 As mentioned above, the Federation also plays a role in acting against the effects of mines, booby-traps, and other devices; in particular, it provides assistance for the care, rehabilitation, and social and economic reintegration of mine victims, and it is involved in mine awareness program.

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Article 6 of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction. Article 8 of the 2003 Protocol on Explosive Remnants of War. Article 4 of the 2005 Additional Protocol III on the Adoption of an Additional Distinctive Emblem. Resolution 2034 (XX), Assistance in Cases of Natural Disaster, 7 December, 1965, available at www.un.org. According to the 1997 Seville Agreement, the Federation is the lead agency of the Movement in any emergency situation which does not take place as part of an armed conflict. See www.ifrc.org and www.icrc.org.

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The National Societies of the Red Cross and Red Crescent

The National Societies are mentioned in provisions covering both international and non-international armed conflicts. 3.1 National Societies in IHL Treaties and Texts 3.1.1 Evolution of the National Societies’ Mention in Treaties The National Societies were first referred to as “relief/aid societies” in treaties, then as “voluntary aid societies,” and then as “National Societies of the Red Cross or Red Crescent.” References to the National Societies can be found in early IHL texts. According to a resolution adopted by the Geneva Conference of 26–29 October 1863, each country should have a Committee assisting the Army Medical Service in time of war.97 This Committee “shall supply relief to their respective armies as far as their means permit”98 and organise voluntary medical personnel placed under military command.99 Finally, the Resolutions provided that the Committees were to wear as a uniform and distinctive sign: a white armlet with a white cross.100 In international treaties, the National Societies were first referred to as “relief societies.” For example, the 1899 and 1907 Geneva Conventions spoke of “officially recognised relief societies.”101 Moreover, the 1899 and 1907 Hague Regulations Respecting the Laws and Customs of War on Land mention inter alia, “relief societies for prisoners of war.”102 Therefore, up to and including 1929, the Convention only spoke of “relief/aid societies,” although it is generally accepted that this term included the National Societies.103 97

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See Article 1: “Each country shall have a Committee whose duty it shall be, in time of war and if the need arises, to assist the Army Medical Services by every mean in its power.” The Committee “shall organise itself in the manner which seems to it most useful and appropriate.” Resolutions of the Geneva International Conference, October 26–29, 1863, in ICRC and Federation, Compendium of Reference Texts on the International Red Cross and Red Crescent Movement, Geneva, 1990. Article 5 of the Resolution. Articles 5 and 6. Article 8. Articles 2. Article 15. Other references to “relief societies” were inserted in the Geneva Convention of 1868, which never entered into force; Article 13 of the Oxford Manuel; and the Brussels Declaration of 1874. Paul Des Gouttes, Commentaire de la Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, CICR, Genève, 1930,

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The National Societies then became labelled “voluntary organisations/ societies” in international treaties. For example, the Covenant of the League of Nations mentioned “duly authorised voluntary national Red Cross organisations.”104 The 1906 and 1929 Geneva Conventions on Wounded and Sick referred to “voluntary aid societies duly recognised and authorised by their governments.”105 The records of the 1929 Conference indicate that the lack of express mention of the National Societies in the Convention was due to a disagreement between European States and Egypt; Egypt wanted to promote the recognition of the Red Crescent as an emblem. The mention of the National Societies was not retained to avoid further discussion of the issue, but all actors agreed that voluntary aid societies included the National Societies.106 After the 1920s, the National Societies were mentioned under their current name in IHL treaties. The first mention was the 1927 Convention that created an International Relief Union (IRU) in case of Natural Calamities. It referred in its Article 5 to the National Societies of the Red Cross.107 Interestingly, the same Article mentioned that the IRU envisaged co-operation with “all other official or non-official organisations that may be able to undertake the same activities for the benefit of stricken populations.”

104 105

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pp. 58–59; Allan Rosas, “Notes on the legal status of National Red Cross Societies,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 961; Hervé Lavergne, La protection et le respect du médecin au cours des hostilités, Pierre Moulin imprimeur, Lyon, 1954, p. 65; Jean Pictet, “Le droit international et l’activité du Comité international de la Croix-Rouge en temps de guerre,” op. cit., p. 128; Max Huber, “Principes, tâches, et problèmes de la Croix-Rouge dans le droit des gens,” op. cit., p. 797; Commentary Article 81 of Protocol I, p. 936, para. 3300; Commentary Article 26 of the First Geneva Convention, p. 225. Article 25 of the Covenant. Article 10 of the 1906 Geneva Convention; Articles 10 and 24 of the 1929 Convention on Wounded and Sick. Article 24 specifies that these societies may use “the distinctive emblem.” Actes de la Conférence diplomatique convoquée par le Conseil Fédéral Suisse pour la révision de la Convention du 6 juillet 1906 pour l’amélioration du sort des blessés et malades dans les armées en campagne et pour l’élaboration d’une Convention relative au traitement des prisonniers de guerre et réunie à Genève du 1er au 27 juillet 1929, Imprimerie du journal de Genève, Genève, 1930, pp. 247–254, 133–134 and 191–192. See Article 5: “In the establishment and working of the International Relief Union, the free co-operation is envisaged: (1) of national Red Cross societies, in conformity with Article 25 of the Covenant of the League of Nations, and of institutions or organisations consisting de jure or de facto unions of such societies.” League of Nations, International Conference for the Creation of an International Relief Union, Convention and Statute Establishing an International Relief Union, Geneva, July 12th, 1927.

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During the Preliminary Conference for the Study of the Conventions in 1946, the ICRC suggested that the National Societies be mentioned specifically among the aid societies in the Geneva Conventions, as they formed nearly the whole of these societies.108 This question brought to light opposing views among the National Societies. Some favoured maintenance of the status quo, arguing that the expression “aid societies” also referred to the National Societies. But others argued that the National Societies should be added, as it might assist the National Societies to fulfil their work.109 The First Commission and the Commission proposed that, in addition to naming the National Societies, the Convention should continue to refer to other aid societies recognised by their Governments as auxiliaries to the Army Medical Service. The Commission thought that the concerned aid societies must have been approved by the National Societies acting in agreement with their Governments. However, the Plenary Assembly decided to omit in its recommendation any mention of societies other than the Red Cross Societies. It was decided that the Conference should consider mainly the interests of the Red Cross without prejudice to the decisions that might be taken by the Governments.110 During the 1949 Diplomatic Conference, the representative of Belgium asked for a specific mention of the National Societies.111 Finally, several articles refer to the National Societies in the First,112 Second,113 and Fourth114 1949 Geneva Conventions.

108 See Chapter 3 for an analysis of the other “voluntary aid societies.” 109 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 125–126. 110 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 30 and 126. 111 Final Record, Committee I, Vol. II-A, p. 188. 112 Articles 24, 26, and 44 of the First Geneva Convention cite together National Societies and other voluntary aid societies. 113 Articles 24, 25, and 43 of the Second Geneva Convention mention “hospital ships utilized by National Red Cross Societies [or] by officially recognized relief societies.” Draft Article 25 did not contain the mention of National Societies or relief societies; these expressions were added by an amendment of Denmark at the Diplomatic Conference. See Annex No. 69, Final Record, Vol. III, p. 52; Final Record, Committee I, Vol. II-A, p. 71. 114 Article 63 of the Fourth Geneva Convention refers also to “recognized National Red Cross (Red Crescent, Red Lion, and Sun) Societies.” The words “Red Crescent, Red Lion and Sun” were added in this article on request from the delegate of Turkey: see Final Record, Committee III, Vol. II-A, p. 753.

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The National Societies are cited alone in several provisions. For example, Articles 25 and 30 of the Fourth Geneva Convention, as well as Articles 6115 and 33116 of Protocol I, refer to the National Societies without any further comparison to aid societies. Article 125 of the Third Geneva Convention deals with relief societies assisting prisoners of war, which “are primarily National Societies,” according to the commentary on Protocol I.117 There is a similar Article in the Fourth Geneva Convention.118 However, other articles mention the National Societies together with other aid societies. For example, Article 8(c) of Protocol I mentions the “medical personnel of national Red Cross (Red Crescent, Red Lion, and Sun) Societies and other national voluntary aid societies.”119 Article 17 of Protocol I refers to “the civilian population and aid societies, such as national Red Cross (Red Crescent, Red Lion, and Sun) Societies.”120 The National Societies are also mentioned in international law treaties under the term “Red Cross or Red Crescent Organisations.” In Article 81 of Protocol I, the text mentions Red Cross or Red Crescent “organisations” rather than the National Societies.121 This is to cover organisations that, because of recognition conditions, cannot be recognised as National Societies, for example, because they are sponsored by entities other than States.122 The term, however, mostly covers the National Societies. Similarly, Article 18 of Protocol II mentions “relief societies . . . such as Red Cross (Red Crescent, Red Lion, and Sun) organizations.”123 In a 115 The draft Article 6 of Protocol I (presented by the ICRC at the 1974–1977 Diplomatic Conference) did not contain a reference to National Societies: see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 4. 116 Article 33 of Protocol I was added by the Committee at the Diplomatic Conference. 117 Commentary Article 81 of Protocol I, p. 936, para. 3302. 118 Article 142 of the Fourth Geneva Convention. 119 Draft Article 8 (presented by the ICRC at the 1974–1977 Diplomatic Conference) already contained this reference to National Societies. See ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 5. 120 Draft Article 17 did not contain a reference to National Societies, but was only mentioning “civilian population or relief societies:” see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 7. 121 Article 81 of Protocol I was added by the Committee at the 1974–1977 Diplomatic Conference. The mention of the National Societies in this article was to recognise the humanitarian role of these Societies and their increasing powers: see Official Records, Vol. VIII, CDDH/I/SR.37, p. 385. 122 Commentary Article 81 of Protocol I, pp. 939–940, para. 3315. 123 The original draft Article 18 did not contain any reference to National Societies: see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 43. Draft Article 14 submitted by the ICRC at the 1974–1977 Diplomatic Conference, stated that relief societies and the

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non-international armed conflict, the central organisation may be paralysed because hostilities and local sections must be able to act independently when necessary. It was for this reason that the term “Red Cross organisations” was chosen in this Article, as it covers not only a National Society, but also its divisions located in that part of the territory under the adverse party’s control. The same term also covers the case of a Society set up during the hostilities, which, while not recognised, nevertheless acts according to Red Cross principles.124 Moreover, at the 1949 Diplomatic Conference, the delegate from Israel also asked whether it would not be advisable to insert a general provision in the Convention stipulating that, whenever a mention was made of the “National Red Cross Societies,” this would also refer to the National Societies and the Red Shield of David. The ICRC delegate said that, in Article 44 of the first Convention, the term “Red Cross” was followed by the words “Red Cross, Red Lion, and Sun” in brackets. It was clear, therefore, that these societies were covered by the mention of the Red Cross. The delegate from the Soviet Union added that Article 26 of the first Convention included the term “the staff of National Red Cross Societies and other Voluntary Aid Societies,” and, if the Red Shield of David was adopted, it would be covered by that term. This enumeration also appears in Article 30 of the Fourth Geneva Convention.125 Finally, the National Societies are mentioned in the 1996 Protocol II on Prohibitions or Restrictions on the Use of Mines,126 the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines,127 and in the 2003 Protocol V on Explosive Remnants of War.128

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civilian population shall be permitted to offer shelter, care and assistance to the wounded and sick: see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 38. An amendment of Australia suggested the following change: “relief societies, such as Red Cross (Red Crescent, Red Lion, and Sun) organizations and the civilian population:” see Official Records, Vol. IV, CCDH/II/227, p. 50. Then Pakistan proposed: “the civilian population and relief societies located in the territory of the High Contracting Party, such as Red Cross, Red Crescent, Red Lion, and Sun organizations.” Article 14 as modified was then incorporated in Article 18 of Protocol II: see Official Records, Vol. VII, CCDH/SR.53, pp. 143–150. Official Records, CDDH/II/SR.88, pp. 348–354; Commentary Article 18 of Protocol II, p. 1476, para. 4871. Final Record, Coordination Committee, Vol. II-B, p. 144. Article 12. Articles 6 and 11. Article 8.

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3.1.2

Reasons for the Mention of the National Societies in International Law Treaties The National Societies were widely mentioned in the Four Geneva Conventions and Protocol, as was the ICRC, as a tribute to their work during the First and Second World Wars. For example, the Diplomatic Conference made express mention of the National Societies in Article 25 of the Fourth Geneva Convention because of the great services they had rendered in transmitting civilian messages during the Second World War.129 In Article 30 of the Fourth Convention, the Diplomatic Conference also mentioned the National Societies as a tribute to the enormous amount of work they accomplished on behalf of civilian victims of the war.130 The Committee, in referring to them by name in Article 26 of the First Convention, wished to “pay a special tribute to the Red Cross Societies, thus recognizing the great services they had rendered on all the battlefields of the world.”131 The XVIIth International Conference of the Red Cross (Stockholm, 1948) recommended that the National Societies should contribute to relief for prisoners of war and civilian internees based upon the generous attitude they adopted during the Second World War.132 3.1.3 Draft References That were Not Adopted in Treaties There have been several proposals to insert other references to the National Societies in the Geneva Conventions and Additional Protocols that have not been adopted. During the 1949 Diplomatic Conference, the Australian delegation tried to insert a new article to protect voluntary aid societies and Red Cross Societies in the Second Geneva Convention. However, the effort was rejected on the basis that these personnel were already sufficiently protected.133 The delegation from the Union of Soviet Socialist Republics, supported by the delegate from India, also proposed the addition of the words “or the National Red Cross Society” after “the ICRC” in draft Article 5 of Protocol II. But the delegate from Mexico stated that such societies might have difficulties acting in civil war conditions and that the reference should be solely to the ICRC.134 129 130 131 132

Commentary Article 25 of the Fourth Geneva Convention, p. 194. Commentary Article 30 of the Fourth Geneva Convention, p. 216. Final Record, Vol. II-A, p. 194; Commentary Article 26 of the First Geneva Convention, p. 225. XVIIth International Conference of the Red Cross, Resolution XXVI; Commentary Article 81 of Protocol I, p. 941, para. 3320. 133 Final Record, Committee I, Vol. II-A, p. 82. 134 Official Records, Vol. VIII, CDDH/I/SR.32, pp. 338–340.

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Draft Article 12 submitted to the ICRC at the 1974–1977 Diplomatic Conference mentioned “Red Cross (Red Crescent, Red Lion, and Sun) Organizations,”135 but Committee II proposed a modification that was adopted by the Conference deleting this reference.136 Another draft Article (35) was entitled “National Red Cross and other relief societies,”137 but the Committee II deleted it, as the substance of this Article became paragraph 1 of Article 18 of Protocol II.138 The Danish Delegation had proposed that the words “and other National Red Cross Societies” be inserted after “the ICRC” in draft Article 59 of the Fourth Geneva Convention. But the Working Party rejected the proposal, which was considered redundant because the National Societies were covered by the expression “impartial humanitarian bodies.”139 3.2 Definition of National Societies One can deduce from the text of the 1899, 1907, and 1949 Geneva Conventions that National Societies are “aid societies” or “relief societies,” which means that their primary task is to aid and provide relief to the protected persons.140 National Societies should, however, fulfil specific conditions. 3.2.1 National Societies should be Authorised and Recognised by a State Until 1986, according to the First Geneva Convention, the requirements for the recognition of a new National Society were to be duly recognised by the government of its country and to be authorised to assist the Medical Service of the armed forces.141 The recognition means that the society must at least have been regularly constituted in accordance with national legislation.142 However,

135 136 137 138 139 140

ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 38. Official Records, Vol. IV, CDDH/II/427, p. 59. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 43. Official Records, Vol. IV, CDDH/427, p. 108 and Vol. VII, p. 151. Final Record, Vol. II-A, p. 748. Under IHL, protected persons are those who benefit in wartime from treaty-based or customary IHL. Specifically, protected persons are the wounded, the sick, the shipwrecked, prisoners of war and other persons deprived of their freedom in relation to conflict, civilians and other persons not or no longer taking part in the fighting, medical and religious personnel, the staff of relief operations, and the staff of civil defence organisations. 141 Article 26 of the First Geneva Convention; Commentary Article 44 of the First 1949 Geneva Convention, p. 328; Commentary Article 24 of the Second Geneva Convention, p. 164; Commentary Article 25 of the Second Geneva Convention, p. 167. 142 Commentary Article 8 of Protocol I, pp. 126–127.

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the Society must be constituted in the territory of an independent State and must be the only National Society in that State.143 The Society was to be authorised by a party to the conflict concerned, i.e., the latter must agree that personnel of this Society are employed as medical personnel.144 There is no mention in the Geneva Conventions of recognition or authorisation procedures; logically, any act of a State entity would be sufficient.145 In October 1986, the XXVth International Conference of the Red Cross adopted the Movement’s new Statutes, which no longer referred to the First Geneva Convention. In vaguer terms, the new Statutes require that a national society “be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.”146 In practise, States have adopted different modes of recognition.147 Once a National Society is recognised by the State, and if it respects the principles of the Movement, the ICRC can recognise the Society.148 Once recognised, a National Society becomes a full partner in the Movement and has to abide by the Statutes of the Movement.149 The ICRC determined, however, not to recognise a National Society during an armed conflict if the country of the society concerned is involved in the conflict.150 Moreover, the Power of Origin shall notify the other State(s) of the names of the societies which it has authorised “to render assistance to the regular medical service of its armed forces.”151 Notifications in times of peace have

143 Ibid. 144 Ibid. 145 Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 32. 146 Article 4.3 of the Statutes. See Frits Kalshoven, “Impartialité et neutralité dans le droit et la pratique humanitaires,” Revue internationale de la croix-rouge, No. 780, novembre– décembre 1989, pp. 547–548. 147 See Chapter 3. 148 See Article 4 of the Statutes of the Movement, pursuant to Article 26 of the First Geneva Convention. 149 Dieter Fleck and Michael Bothe, The Handbook of IHL in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 270. 150 Commentary Article 81 of Protocol I, pp. 939–940, para. 3315. 151 Article 26 of the First Geneva Convention; Articles 10 of the 1906 and 1929 Geneva Conventions.

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never taken place. During hostilities, such notification can be made through a Protecting Power or directly by the State.152 3.2.2

National Societies should Act in Accordance with Red Cross Principles National Societies should act in accordance with the fundamental principles of the Red Cross as formulated by the International Red Cross Conferences.153 This wording covers all four of the Geneva Conventions and the conditions for the recognition of new National Societies. It also includes the resolutions adopted by the International Red Cross Conferences.154 In fact, in 1949, these principles had not yet been explicitly formulated. One of the conditions for recognition of new National Societies summarised the principles by referring to “the impartiality, the political, religious, and economic independence, the universality of the Red Cross, and the equality of the National Red Cross Societies.”155 Later, the Movement considered that it was necessary to define the fundamental principles more precisely, and, after careful consideration, the XXth International Conference (Vienna, 1965) proclaimed the fundamental principles upon which Red Cross activities are based. These included the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality.156 The reference to Red Cross principles 152 Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 39. 153 See Article 63 of the Fourth 1949 Geneva Convention and Article 81 of Protocol I. 154 These resolutions have been collected together in the Handbook of the International Red Cross, ICRC/Federation, Geneva 1994. The principles of humanity, equality of men, neutrality, independence, impartiality, universality and equality of the National Societies form the basis of this system of rules. See more on this subject: Max Huber, Principes, tâches et problèmes de la Croix-Rouge dans le droit des gens, op. cit.; Jean Pictet, Red Cross Principles, op. cit. 155 Commentary Article 81 of Protocol I, p. 941, para. 3320. 156 The text is given below: ‘Humanity’ The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield endeavours—in its international and national capacity— to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation, and lasting peace amongst all peoples. ‘Impartiality’ It makes no discrimination as to nationality, race, religious beliefs, class, or political opinions. It endeavours only to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

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guarantees that the actions of the National Societies will be of an essentially humanitarian character.157 3.2.3 National Societies are Subject to Military Laws and Regulations Finally, the staff of the National Societies is subject to military laws and regulations. This requirement was proposed at the Geneva Conference of 1863, but it was not adopted.158 However, it was included in the 1929 and 1949 Geneva Conventions.159 This requirement means that National Societies operate under the “responsibility” of the State and that they receive their badges and identity cards from the military authorities. In practise, the staff of the National Societies is temporarily attached to the Medical Service and is under its orders. There is nothing in the Convention, however, which implies that they become members of the Medical Service and, consequently, part of the armed forces.160



‘Neutrality’ In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious, or ideological nature. ‘Independence’ The Red Cross is independent. The National Societies, while auxiliaries in the humanitarian services of their Governments, and therefore subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with Red Cross principles. ‘Voluntary service’ The Red Cross is a voluntary relief organisation not prompted in any manner by desire for gain. ‘Unity’ There can be only one Red Cross Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory. ‘Universality’ The Red Cross is a world-wide institution in which all Societies have equal status and share equal responsibilities and duties in helping each other.” 157 Commentary Article 63 of Convention IV, p. 332. For more information on the recognition process of the National Societies of the Red Cross, see Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., pp. 177–391. 158 Compte-rendu de la Conférence internationale réunie à Genève les 26, 27, 28 et 29 octobre 1863 pour étudier les moyens de pourvoir à l’insuffisance du service sanitaire dans les armées en campagne, Imprimerie Fick, Genève, p. 17. 159 See Article 10 of the 1929 Geneva Convention and Article 26 of the first 1949 Geneva Convention. 160 Commentary Article 26 of Convention I, p. 222.

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3.2.4

National Societies Fulfil the Same Duties as the Personnel of the Medical Services The personnel of the National Societies are to be engaged in the same duties as the personnel of the medical services.161 This means that these personnel are engaged only in the duties set forth in the First Geneva Convention: the search for and treatment of the wounded and sick of the armed forces, the prevention of disease, the administration of army medical units and establishments, and the service as chaplains attached to the forces.162 Circumstances may require that the whole personnel of the National Society work for the medical services. As a general rule, however, only a part of the personnel will be employed in this manner, and the remainder will be engaged in medical or social relief work for the general population.163 3.3 Mandate of the National Societies The personnel of the National Societies should be assigned to specific tasks,164 which are exclusively limited to the collection, transport, and treatment of the wounded and sick, and the administration of medical formations and establishments.165 The first Geneva Convention and Protocol I contained a similar list of functions and added that the National Societies could also be engaged in the search for the wounded or sick and in the prevention of disease.166 Article 8(c) of Protocol I extended the definition of the wounded and sick to all “persons, whether military or civilian, who, because of trauma, disease, or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies, and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.” In practise, the National Societies act as auxiliaries to the public authorities of their own countries in the humanitarian field and provide a range of services, including disaster relief and health and social programmes. During 161 162 163 164

See Article 26 of the First 1949 Geneva Convention. Article 24 of the First Geneva Convention. Commentary Article 26 of Convention I, p. 222. This requirement did not exist in the 1906 Convention and was inserted in IHL treaties after 1929. 165 Article 10 of the 1929 Geneva Convention. 166 Article 26 of the first 1949 Geneva Convention and Article 8(c) of Protocol I.

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wartime, the National Societies assist the affected civilian population and support the army medical services where appropriate. Depending upon their resources, many National Societies take on additional humanitarian tasks, such as emergency shelter, food and medicine, water and sanitation, restoring family contact for disaster victims, disaster preparedness, community-based health and care, first aid training and activities, control and prevention of diseases, HIV/AIDS prevention, blood donor recruitment, collection, and supply, and youth and volunteer activities. Moreover, the National Societies conduct campaigns for vulnerable people and promote awareness of IHL.167

167 See www.ifrc.org and www.icrc.org. For additional information on the activities of the National Societies, see IFRC, National Red Cross and Red Crescent Societies as Auxiliaries to the Public Authorities in the Humanitarian Field: Conclusions from the study undertaken by the International Federation of Red Cross and Red Crescent Societies, Document 03/IC/12, Geneva, 2003, available at www.icrc.org.

chapter 3

The Reference to 13 Other Organisations in IHL Treaties: A Basis for NGOs The Geneva and The Hague Conventions and Protocols refer to several organisations, apart from the members of the Movement, which fulfil the definition of NGOs. These organisations are the voluntary aid organisations, civil defence organisations, medical personnel, religious personnel, substitutes of the Protecting Powers, impartial humanitarian bodies/organisations, organisations giving assistance to the prisoners of wars, relief societies, international religious organisations, and four other organisations assisting protected persons. This Chapter successively defines these organisations, without referring to medical or religious personnel that are part of the armed forces of a State, since these personnel cannot be considered as non-governmental. Findings on the definition and status of these organisations are primarily based on the interpretation of primary materials. Article 31 of the Vienna Convention on the Law of Treaties provides that the starting point for treaty interpretation is an examination of the text itself and the context that other texts provide.1 1 Article 31 on “General rule of interpretation” reads as follows: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practise in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 on “Supplementary means of interpretation” reads as follows: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation

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If a textual analysis leaves room for doubt, the interpreter can turn to the negotiating history.2 The preparatory work of a treaty, as recognised by international tribunals, is an important supplementary means of interpretation.3 In addition, the Commentary on the Geneva Conventions and the Additional Protocols is highly persuasive4 and therefore a useful resource to further define the organisations cited in IHL treaties. 1

Volunteer/Voluntary Aid Societies

“Volunteer aid societies” or “voluntary aid societies” are mentioned in the 1899 Convention III of The Hague, the 1906 and 1929 Geneva Conventions, the First and Third 1949 Geneva Conventions, and Additional Protocol I.5 Moreover, the 1906 and 1929 Conventions, the First Geneva Convention, and Protocol I include references to “aid societies,”6 a term which should be understood to mean “voluntary aid societies.”7 These societies are therefore mentioned in provisions covering only international armed conflicts.

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according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Article 32 of the Vienna Convention on “Supplementary means of interpretation” reads as follows: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Anthony Aust, Modern Treaty Law and Practice, Cambridge University Press, Cambridge, 2003, p. 197. For example, in the Lockerbie case, the United Kingdom maintained that it was not intended that the UN Charter should give the International Court of Justice a power of juridical review over Security Council decisions, and that this is supported by the Travaux of the Charter: Libya v. United Kingdom (Preliminary Objections), ICJ Reports 1998, p. 9, paras. 4.17–4.18. Anthony Aust, Modern Treaty Law and Practice, op. cit., p. 191. See Articles 3 and 4 of the 1899 Convention III of The Hague; Articles 10 and 11 of the Geneva Convention of 1906; Articles 10, 11, and 24 of the Geneva Convention of 1929; Articles 26, 27, 28, and 44 of the First Geneva Convention; Article 33 of the Third Geneva Convention; Article 8 of Protocol I. See Articles 16 of the 1906 and 1929 Conventions, Article 34 of the First Geneva Convention, and Articles 9 and 17 of Protocol I. Commentary Article 17 of Protocol I, p. 213, para. 708.

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1.1 Definition of the Various Voluntary Aid Societies 1.1.1 The National Voluntary Aid Societies The 1906 and 1929 Geneva Conventions mention the “volunteer aid societies, duly recognized and authorized by their own governments, who are employed in the sanitary formations and establishments of armies” and “are subject to military law and regulations.”8 The First Geneva Convention contains similar terms.9 These societies are also cited in Protocol I, which mentions “national voluntary aid societies duly recognized and authorized by a Party to the conflict.”10 The insertion of this reference to voluntary aid societies in the Geneva Conventions was due to a practise of recognition by States, as auxiliaries of the medical services, of organisations other than the National Societies. These organisations included, for example, the Knights of Malta and the Order of St. John of Jerusalem.11 The reference to voluntary aid organisations has been discussed twice by the parties to the 1949 Diplomatic Conference. First, the United Kingdom offered a change that would have inserted the word “neutral” before “aid societies” in draft Article 34 of the First Geneva Convention, so that it would have stated that only societies of neutral countries should be covered by this Article; due to opposition, however, the U.K. withdrew it.12 Secondly, a modification was offered by the delegations from the Netherlands, the Holy See, Italy, France, Mexico, and Portugal to replace the reference to aid societies in draft Article 33 at the 1949 Diplomatic Conference with the word “associations.” However, the delegate from New Zealand opposed this modification, and the rest of the text was adopted.13 The term “voluntary” does not mean that the staff of such societies is unpaid, but that their work is based upon an engagement accepted of their own free will and not upon any obligation to the State.14 Such societies are, therefore, private relief societies. The voluntary character of the societies was originally stated in opposition to compulsory service in the armed forces. Even today, this 8 9 10 11

12 13 14

Articles 10 of the 1906 and 1929 Geneva Conventions. Articles 26 and 44 of the First Geneva Convention. Article 8(c)(ii) of Protocol I. Jean Pictet, “Le droit international et l’activité du Comité international de la Croix-Rouge en temps de guerre,” Revue internationale de la croix-rouge, No. 486, janvier 1943, p. 128; Max Huber, “Principes, tâches, et problèmes de la Croix-Rouge dans le droit des gens,” op. cit., p. 798; Commentary Article 26 of the First Geneva Convention, p. 225. Final Record, Committee I, Vol. II-A, pp. 83–84. See Annex No. 110, Final Record, Vol. III, pp. 67–68; Final Record, Plenary Meeting, Vol. II-B, pp. 282–286 and 342. Final Record, Vol. II-A, p. 194.

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voluntary character means that the personnel of such societies should freely exert their functions.15 Article 3 of the 1986 Statutes of the Movement stipulates that National Societies are “autonomous national organisations” that provide an indispensable framework for the activities of their voluntary members and staff. Voluntary aid societies are therefore societies which have not been created by the State, but which have their origin in private initiative and enjoy extensive independence and autonomy. Article 34 of the First Geneva Convention explicitly indicates that “the real and personal property of aid societies which are admitted to the privileges of the Convention shall be regarded as private property.” The principle of voluntary service can also cover the concept of the gratuitousness of the work done.16 1.1.2 The Recognised Societies of a Neutral Country The 1899 Convention III of The Hague includes references to “hospital-ships, equipped wholly or in part at the cost of private individuals or officially recognized societies of neutral countries.”17 The mention of these individual societies as a “recognized society of a neutral country” also appears in the 1906, 1929, and First 1949 Geneva Conventions.18 Articles 11 of the 1906 and 1929 Geneva Conventions state that a recognised society of a neutral country can provide the assistance of its medical personnel and formations to a belligerent with the consent of its Government and the authorisation of the belligerent concerned. The belligerent who accepts such assistance is bound to notify the enemy before making any use of it.19 In practise, the society will be authorised to assist the medical service of its own armed forces. These societies, as well as their staff, must be duly identified and fly, along with the flag of the Convention, the national flag of the belligerent to whose army they are attached.20 They also have the right to fly their national flag. Article 27 of the First 1949 Geneva adds that the members of such a society 15 16 17 18 19 20

Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 218. Hans Haug, Humanity for All: The International Red Cross and Red Crescent Movement, op. cit., pp. 475–476. See Articles 3 and 4 of the Convention. Articles 11 of the 1906 and 1929 Geneva Conventions; Article 23 of the 1929 Convention; Article 27 of the First 1949 Geneva Convention. Norway also made a similar remark at the Diplomatic Conference: see Final Record, Committee I, Vol. I, p. 78. Article 23 of the 1929 Convention.

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“shall be duly furnished with the identity cards provided for in Article 40.”21 Moreover, before leaving their country, the members of these neutral personnel must be duly furnished with the special identity cards issued by the military authority of the belligerent concerned.22 What does it mean to be neutral? Article 23 of the 1929 Convention specifies that these societies belong to “neutral countries.” At the Diplomatic Conference, the Committee distinguished clearly between the personnel belonging to national relief societies and the personnel of neutral relief societies which lent their aid to one or another of the belligerents.23 The term “neutral State” was replaced in Article 9 of Protocol I by the expression “neutral or other State not a Party to the conflict.” The Protocol, contrary to the Conventions, considers entities that are not States as being possible parties to the conflict. The reference to the “relevant” provisions of Articles 27 and 32 of the first Convention makes it possible to overcome this difference and to read these Articles within the meaning of the Protocol.24 During the discussion on the revision of the 1929 Convention, the delegation from the Netherlands Red Cross requested that the experts examine the question of the legal status of the medical assistance afforded by neutrals. The Commission first decided to submit the matter to a sub-commission, but finally abandoned the idea. In connection with Article 11, the question was also raised whether neutral States might not give the belligerent the benefit of their medical service. The Commission rejected this proposition without discussion because of the great difficulties which would follow such practise. The Committee of Experts that dealt with the revision of the Tenth Hague Convention reached the same conclusion.25

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23 24 25

It was under the request of the delegation of India that Article 27 stated clearly that these societies were placed under the control of the belligerent and that the identity cards were issued by this belligerent: see Final Record, Committee I, Vol. II-A, pp. 78 and 122. This last provision comes from the fact that, at the 1949 Diplomatic Conference, the delegates from India and Norway insisted that neutral societies were placed under the belligerent’s control and that the belligerent should send identity cards to the neutral personnel. See Final Record, Committee I, Vol. II-A, pp. 78 and 122. Final Record, Committee I, Vol. II-A, p. 122. Commentary Article 9 of the Protocol I, p. 140, paras. 421–423. Report of the International Committee on the Revision of the Tenth Hague Convention of 1907, p. 40; Report on the Interpretation, Revision and Extension of the Geneva Convention of July 27, 1929, Sixteenth International Red Cross Conference, London, June 1938, International Red Cross Committee, Geneva, pp. 16–17.

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Finally, it should be noted that there is no real practise on the use of these provisions.26 1.1.3 The National Red Cross and Red Crescent Societies The “voluntary aid societies” included, originally in the 1906 and 1929 Geneva Conventions, the personnel of National Societies and other recognised relief societies that assisted the medical service of the armed forces. Articles regarding the “officially recognised societies of neutral countries” also clearly applied to National Societies and other societies assisting the medical services belonging to neutral countries.27 As seen previously, before the 1949 Geneva Conventions, the treaties did not mention the National Societies. Similarly, Article 34 of the First Geneva Convention mentions only “aid societies,” but, at the 1949 Diplomatic Conference, the delegate from the Union of Soviet Socialist Republics stated that this expression could be applied to Red Cross Societies.28 To confirm this fact, several articles in the IHL treaties mention together the National Societies and the aid societies.29 The first Commission during the 1946 Conference specifically decided to mention both together.30 Additionally, during the discussion on draft Article 17 of Protocol I at the Diplomatic Conference on “aid societies,” the National Societies were mentioned as examples,31 and the Committee II adopted this mention.32 When it was adopted at the Conference, one delegate recalled that the mention of such societies “does not

26 27

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Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 68. Paul Des Gouttes, Commentaire de la Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, CICR, Genève, 1930, pp. 68–69. Final Record, Committee I, Vol. II-A, pp. 83–84. Articles 26 and 44 of the First 1949 Geneva Convention. Voluntary aid societies are also mentioned with the National Societies in Article 8(c)(ii) of Protocol I, although originally the draft Article 8 submitted by the ICRC mentioned only National Societies. And Article 17 of Protocol I also mentions “aid societies, such as national Red Cross (Red Crescent, Red Lion, and Sun) Societies.” Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., p. 126. Official Records, Vol. III, CDDH/II/1, 11, 16, 19, pp. 82–84. Ibid., Vol. XI, CDDH/II/SR.17, p. 162, paras. 62 and 63.

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imply any limitation on the initiative and the action of other aid societies,”33 meaning “voluntary aid societies.”34 It should therefore be understood that the National Societies are “voluntary aid societies,” even if they are not the only ones. 1.2 Criteria to be Fulfiled by These Societies The voluntary aid societies should fulfil several criteria, which are the same as those that apply to National Societies, apart from the explicit requirement to act in accordance with Red Cross principles. 1.2.1

To have been Recognised and Authorised by the Party to the Conflict Concerned This criterion is specified in the 1906, 1929, and 1949 First Geneva Convention, as well as in Protocol I.35 To have been “recognised,” the society must have been constituted in accordance with national legislation. The obligation to be duly recognised means that the organisation should be legally based and constituted according to the national laws in vigour in their States of establishments.36 According to the commentary on the 1929 Convention, the recognition by the State can be made in any way. Moreover, the authorisation to act in the sanitary service can be implicit. To be “authorised” means that the party must agree that the personnel of these societies can be employed as medical personnel.37 In practise, authorisation may often coincide with recognition or follow logically from the statutes of the society as approved by the Government.38 Article 17 of Protocol I states that the civilian population and aid societies “shall be permitted, even on their own initiative” to undertake the activities. The word “permitted” might lead to the supposition that authorisation should be requested, but such is not the case, and, in the absence of any contrary provision, there is a presumption that the activities described are permitted.39 There can also actually be no question of requesting authorisation when people 33 34 35

36 37 38 39

Ibid., Vol. VI, CDDH/SR.37, Annex (Holy See), p. 78. Commentary Article 17 of Protocol I, p. 213, para. 708. Articles 10 of the 1906 and 1929 Geneva Conventions and 26 of the First 1949 Geneva Convention define the personnel of volunteer aid societies as “duly recognized and authorized by their own governments.” Article 8 of Protocol I mentions “national voluntary aid societies duly recognized and authorized by a Party to the conflict.” Commentary Article 8 of the Protocol I, pp. 126–127, para. 358. Ibid. Commentary Article 26 of the First Geneva Convention, p. 226. Commentary Article 18 of the First Geneva Convention, p. 189.

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act on their own initiative, since, otherwise, they would no longer be acting on their own initiative. Thus, the authorisation referred to here applies generally and is given once and for all.40 It is the expression of a right.41 1.2.2

The State should have Notified All Other States of the Societies it has Authorised This condition for protection obliges the States to inform each other, before employment, of the name of the societies.42 Notification must be made officially by one State to other States in peacetime, or to enemy Powers in time of war. In default of notification, voluntary personnel may find that the enemy refuses to accord them the privileges to which they are entitled as medical personnel, which is not the case for the National Societies, as their existence is a matter of common knowledge.43 1.2.3 To be Subject to Military Laws and Regulations The personnel of voluntary aid societies are “subject to military laws and regulations.”44 During the Sixteenth International Red Cross Conference to revise the 1929 Convention, which took place in 1938, the ICRC suggested substituting the words “subject to military laws and discipline” in place of “subject to military laws and regulations.” The Commission upheld the existing wording, however, since there were far more military regulations than laws, and since the notion of “regulations” is different from that of military “discipline,” to which, moreover, voluntary aid societies may not be entirely subject.45 The societies are to operate under the “responsibility” of the State46 and receive their badges and identity cards from the military authorities. It follows that, in practise, the staff of voluntary aid societies is temporarily attached to the medical service and is under its orders. Nevertheless, such personnel retain civilian status. 40 41 42

43 44 45 46

Commentary Article 17 of Protocol I, p. 214, para. 709. Official Records, Vol. XI, CDDH/II/SR.24, p. 243, para. 59. Articles 10 of the 1906 and 1929 Geneva Convention provide that “each State shall make known to the other, either in time of peace or at the opening, or during the progress of hostilities, and in any case before actual employment, the names of the societies which it has authorized to render assistance, under its responsibility, in the official sanitary service of its armies.” Article 26 of the First Geneva Convention has a similar wording. Commentary Article 26 of the First Geneva Convention, pp. 228–229. Articles 10 of the 1906 and 1929 Geneva Convention and Article 26 of the First 1949 Geneva Convention. Report on the Interpretation, Revision, and Extension of the Geneva Convention of July 27, 1929, Sixteenth International Red Cross Conference, London, June 1938, op. cit., pp. 15–16. Article 26 of the First 1949 Geneva Convention.

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1.2.4

To Perform the Same Duties as the Personnel of the Medical Services The personnel of the voluntary aid societies should be engaged exclusively in the collection, transport, and treatment of the wounded and sick.47 This addition eliminated the traditional societies working for the material and moral support of the armies, such as Christian organisations, the Quakers, etc.48 During the Conference to revise the 1929 Convention, the Commission held that it was not advisable to define “the task or programme of relief societies, which depends on their by-laws and on national legislation.”49 However, the First Geneva Convention provides that these societies may be employed to perform the following duties: “the search for, or the collection, transport, or treatment of the wounded or sick, or in the prevention of disease.”50 The commentary on the Convention also states that aid societies are engaged in caring for the wounded and sick of the armed forces.51 Other Articles mention that voluntary aid societies have a similar role to that of the medical personnel.52 Regarding the neutral aid societies of Articles 27 of the First Geneva Convention and 9 of Protocol I, there is no direct mention of their tasks in these provisions. However, in practise, this “will always, or nearly always, be a society which has already been authorized to assist the medical service of its own armed forces.”53 The mandate of the voluntary aid societies is, therefore, to care for the wounded and sick of the armed forces. In performing these duties, the voluntary aid societies have the right to use the distinctive emblem.54 .

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50 51 52

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Articles 10 of the 1906 and 1929 Geneva Conventions. Paul Des Gouttes, Commentaire de la Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, op. cit., pp. 62–63. Report on the Interpretation, Revision, and Extension of the Geneva Convention of July 27, 1929, Sixteenth International Red Cross Conference, London, June 1938, International Red Cross Committee, Geneva, p. 30. Article 26 of the First Geneva Convention. Commentary Article 34 of the First Geneva Convention, p. 277. Article 33 of the Third Geneva Convention speaks of “medical personnel, including that of societies mentioned in Article 26 of the (First) Geneva Convention” and Article 8 of Protocol I “medical personnel of . . . national voluntary aid societies.” Article 17 of Protocol I also states that “aid societies . . . shall be permitted . . . to collect and care for the wounded, sick, and shipwrecked.” Commentary Article 27 of the First Geneva Convention, p. 230; Commentary Article 9 of Protocol I, p. 142, para. 433. See Article 44 of the first Geneva Convention.

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1.3 Examples of Voluntary Societies The Knights of Malta requested that the 1906 and 1929 Diplomatic Conferences place them on the same footing as the National Societies and include an express provision to that effect in the Convention. This proposal was not accepted.55 In the final act of the Diplomatic Conference held in Geneva on 27 July 1929, however, it was stated: “In view of a request by the Sovereign and Military Order of the Hospitallers of St. John of Jerusalem, called the Order of Malta, the Conference considers that the provisions laid down by the Geneva Convention governing the position of aid societies with armies in the field are applicable to the national organizations of this Order. The same applies as regards the Grand Priory of St. John of Jerusalem in England, the Orders of St. John (Johanniter) and of St. George in Germany, and similar nursing Orders in all countries.”56 During the Preliminary Conference for the Study of the Conventions in 1946, the Conference stated that there were about ten aid societies, the most important of which were mentioned in the Final Act of the Diplomatic Conference of 1929.57 During the XVIth International Conference of the Red Cross in 1938, the ICRC included in its report the list of these aid societies, which were mainly National Societies and a few charitable organisations.58 Finally, during the Diplomatic Conference of 1949, Jean Pictet of the ICRC stated that the voluntary aid societies mentioned in Article 26 of the first Convention were almost exclusively National Societies, with the exception of a dozen or so, among which were the Order of the Knights of Malta and the Order of St. John of Jerusalem.59 55 56 57 58

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Commentary Article 26 of the First Geneva Convention, p. 225. Final Act of the Diplomatic Conference, Geneva, 27 July 1929, recommendation II. Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., p. 30. These societies included: the Belgian, Brazilian, British, Bulgarian, Danish, Dutch, Egyptian, Esthonion, Hellenic, Hungarian, Iraqi, Latvian, Polish, Rumanian, Spanish, Swedish, Swiss, and Turkish Red Cross or Red Crescent Society, the French “Société de secours aux blessés militaries,” “Union des femmes de France,” and “Association des dames francaises,” the British Order of St. John of Jerusalem, the British St. Andrew’s Ambulance Association, the Dutch Branch of the Sovereign Oder of Malta, the Dutch Chapter of the Order of St. John, the Ephory of the Civil Hospitals of Bucharest and of the St. Spriridon Hospital at Jassy, the Queen Elizabeth Institute of the Sisters of Charity of Bucharest and the Salvarea Society of Bucharest. General Report of the International Red Cross Committee on its activities from August, 1934 to March, 1938, International Red Cross Committee, Geneva, 1938, pp. 20–21. Final Record, Committee I, Vol. I, p. 78.

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Civil Defence Organisations

The first notable international civil defence rules appeared in the 1899 Hague Regulations, revised in 1907.60 These 1907 rules were extremely general and had only a very limited impact upon the development and protection of civil defence organisations. The suffering inflicted upon the civilian population during the First World War prompted the international community to give attention in the early 1920s to the issue of civil defence. Two organisations played a very considerable part in this work: the International Civil Defence Organisation (ICDO), or more precisely, its predecessor, the Association des Lieux de Genève, founded in 1931, and the Movement.61 The existence of civil defence organisations was finally addressed, although timidly, at the 1949 Diplomatic Conference. It adopted only Article 63 of the Fourth Convention, citing the “special organisations of a non-military character.” Since then, the existence of civil defence organisations was widely recognised in Protocol I. These organisations are therefore mentioned in provisions covering only international armed conflicts. 2.1 Special Organisations of a Non-Military Character Article 63 of the Fourth Geneva Convention of 1949 mentions “special organizations of a non-military character, which already exist or which may be established, for the purpose of ensuring the living conditions of the civilian population by the maintenance of the essential public utility services, by the distribution of relief and by the organization of rescues.” These organisations, according to the Commentary on Article 6362 and the discussions at the Diplomatic Conference,63 were “rendering certain services necessary to the population (civil defence, passive defence, civil security services, civil air defence, etc.).” Therefore, it clearly appears that the organisations referred to are those which today are called civil defence.64 This inter60 61

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Articles 23, 26, 28, 43, and 46. Stéphane Jeannet (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, ICDO/ICRC, Geneva, 1997. Commentary Article 63 of the Fourth Geneva Convention, pp. 333–334. Final Record, Vol. II-A, pp. 670, 753, and 833. Civil Defence in IHL, ICRC Fact Sheet, 30-6-2001, available at http://www.icrc.org/; Michael Bothe and Karin Janssen, “Problèmes de protection des blessés et maladies,” Revue internationale de la croix-rouge, No. 760, juillet–août 1986, pp. 199–200; Erik Schultz, Civil Defence in International Law, Danish National Civil Defence and Emergency Planning Directorate, Copenhagen, September 1977, p. 2; Bosko Jakovljevic, New International

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pretation was confirmed during the 1974–1977 Diplomatic Conference, when Germany stated that Articles 61 to 67 of Protocol I (on civil defence) contain “a significant contribution to the development of humanitarian protection for the activities of organizations of a non-military character mentioned in Article 63 of the Fourth Geneva Convention.”65 The reference to “special organisations of a non-military character” did not exist in the draft Article 63 presented to the 1949 Diplomatic Conference, which stated that “the parties to the conflict shall, as far as possible, ensure medical care and hospital treatment to civilians: they shall allow medical personnel of all categories to fulfil their duties.” It was the delegate from Belgium who proposed that the facilities accorded to medical personnel should be extended to special non-military services concerned with the protection of the civilian population.66 The paragraph referred to civil security services that already existed in many countries and were not covered by the term “other relief societies,” because they were outside of the limits of humanitarian organisations and governed by national legislation. Such organisations were established under State arrangements in a number of countries occupied during the Second World War.67 The Delegation from the Soviet Union did not agree with this addition, as it found that the Stockholm text gave more effective

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Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, Martinus Nihoff Publishers, The Hague/Boston/London, 1982, p. 7; Adam Roberts, “Civil Defence and International Law,” in Michael Meyer (ed.), Armed Conflict and the New Law, Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, Vol. 1, British Institute of International and Comparative Law, London, 2003, pp. 183–184. CDDH/SR.43, Annex to the summary record of the forty-third plenary meeting, explanations of vote, Official Records, Vol. VI, p. 269. Final Record, Committee III, Vol. II-A, p. 631. See Annex No. 2903, Final Record, Vol. III, p. 138 and Committee III, Vol. II-A, pp. 670, 753 and 833. The amendment read as follows: “It is essential, in the interests of the civil population, that there should be no interruption in the functioning of special services created to meet the contingencies of conflicts which are steadily developing into total warfare, so that a minimum of protection may be ensured to persons who are not regarded as engaged in active military operations. The Belgian Delegation is of the opinion that such services should be granted the same guarantees as those already granted to National Red Cross Societies and other organisations of the kind. In many respects, the duties of such societies and those of the services in question are identical or complementary. There may be times when only the assistance of the special services will be called upon. Hence, the following words might be inserted between the first and second paragraphs of Article 54, forming a new paragraph to read as follows: “The same shall apply, within the powers conferred upon them by law or regulation, and apart from any military activity, to the special services occupied in the protection of the civil population.” In the second paragraph, after the words ‘of these societies’ should be inserted ‘and special services.’ The third

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protection to the activities of the Red Cross Societies. The delegate from Denmark insisted, however, that some protection be given to organisations that are going to care for and assist the civilian population. The delegate from Belgium stated that the experience of the last war showed how great the services rendered by certain new organisations had been concerning the welfare of the civilian population. He added that, in the event of a new conflict, these organisations were likely to be enlarged in proportion to the increased efficacy of the new means of destruction that will probably be employed.68 The duties of special organisations of a non-military character and those of relief societies are complementary in taking measures to mitigate the effects of bombing, in the organisation of rescue work, and in the distribution of relief. Article 63 may be compared with Article 56, which says that the occupying power has the duty to ensure and maintain medical and hospital establishments and services “with the co-operation of national and local authorities.”69 Since these organisations should be of a “non-military character,” they should not, therefore, participate in war actions.70 If they take part in resisting the enemy, they would come under the Third Geneva Convention, and the occupying authorities would be able to dissolve them and arrest their members.71 The non-military character comes from the authority upon which the organisation depends. If it is under the authority of the Interior Ministry, one might presume that the organisation has a non-military character.72 Article 63 can therefore be applicable to a country’s fire-fighters.73 Moreover, Article 63 specifies that the Red Cross principles shall apply to the activities and personnel of special organisations of a non-military character. This means that such organisations should respect the principles of humanity, impartiality, and neutrality. These organisations are also independent from the State in which they are established. Finally, most of the experts agree that

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paragraph should begin as follows: ‘Relief societies other than those mentioned above shall be . . .’ ” Final Record, Plenary Meeting, Vol. II-B, pp. 423–424. Ibid., Vol. II-A, p. 753; Vol. II-B, pp. 423–424; Vol. III, p. 139. Erik Schultz, Civil Defence in International Law, op. cit., pp. 2–3. Commentary Article 63 of the Fourth Geneva Convention, pp. 333–334. In this regard, see the report D 745 of the Working Group on the situation of the civil protection organisations in International Law (Geneva, 12–16 June 1961), in CICR, “Un statut international spécial pour le personnel de protection civile,” Revue internationale de la croix-rouge, No. 526, octobre 1962, pp. 482–483. If they perform only humanitarian tasks, see Ibid., pp. 489–490.

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Article 63 refers to organisations from the country only and not from other neutral countries.74 2.2 Civil Defence Organisations in Protocol I 2.2.1 Proposals to Adopt Additional Provisions on Civil Defence It soon became clear that Article 63 of the Fourth Geneva Convention needed supplementing, as it concerned only situations of occupation and insufficiently provided for the protection of civil defence organisations.75 Several proposals were developed in this regard. In the years following the 1949 Geneva Conventions, the ICRC received re­commendations from several National Societies urging it to prepare supplementary provisions on civil defence. Thus, the ICRC included a provision in the Draft Rules for the Limitation of the Dangers Incurred by the Civil Population in Time of War.76 But the proposals met with strong opposition, and the Draft Rules ultimately were not endorsed. Throughout the 1960s and until 1972, the ICRC convened several meetings of experts, from which arose supporting resolutions at the Centenary Red Cross Congress in Geneva in 1963 and at the International Red Cross Conferences in Vienna (1965), Istanbul (1969), and Teheran (1973).77 Meanwhile, the issue was taken up on a joint Nordic basis in September 1964. The delegates agreed on a joint memorandum, which, in 1967, was submitted to the ICRC by representatives of Denmark, Finland, Norway, and Sweden at a meeting in Geneva. This memorandum was intended to form the basis of the draft provisions on protection of civil defence submitted by the ICRC at two preparatory Government Expert Conferences held in Geneva in 74

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See the report D 745 of the Working Group on the situation of the civil protection organisations in International Law (Geneva, 12–16 June 1961), in CICR, “Un statut international spécial pour le personnel de protection civile,” op. cit., p. 493. First, this Article protects organisations as such; it does not prevent the occupying power from requisitioning civil defence personnel and compelling them to perform other tasks. Secondly, the protection it establishes for civil defence organisations is “subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power.” The fact that these urgent reasons of security were not defined, either in the Convention or during the Diplomatic Conference, naturally leaves the way open to abuse. Draft Article 12 ordered the parties to facilitate “the work of the civilian bodies exclusively engaged in protecting and assisting the civilian population in case of attack.” Moreover, it provided that the parties to the conflict might agree on conferring, by a specific emblem, special immunity upon these personnel. Erik Schultz, Civil Defence in International Law, op. cit., pp. 3–4; Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, Martinus Nihoff Publishers, The Hague/Boston/London, 1982, pp. 7–9.

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1971 and 1972. The ICRC also convened a number of expert meetings in 1973.78 With the information they produced, and making use of other work, the ICRC introduced detailed rules on civil defence into the two draft protocols.79 Both drafts contained provisions directly concerning civil defence.80 The ICDO also took part in the elaboration of new rules.81 Protocol I expands the protection for civil defence organisations to cover all situations of international armed conflict. In the case of a civilian organisation, Articles 62 to 66 apply,82 while Article 67 applies in the case of a military organisation devoted to civilian protection.83 Contrary to the wishes of the ICRC, the States did not agree to retain the provisions concerning civil defence in Protocol II.84 The ICRC draft of 1973 included two articles on civil defence. Draft Article 30 provided that civil 78

Erik Schultz, Civil Defence in International Law, op. cit., pp. 4–5; Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, op. cit., pp. 10–11. 79 See, for example, the report D 745 of the Working Group on the situation of civil protection organisations in International Law (Geneva, 12–16 June 1961), summarised in CICR, “Un statut international spécial pour le personnel de protection civile,” op. cit., pp. 477–501; the report DD 3 b/I on the Status of personnel of the services of civil protection, Geneva, June 1963. 80 Articles 54–60 of Protocol I; Articles 30 and 31 of Protocol II. 81 See Memorandum Concerning Articles 54, 56, 57, and 59 of Draft Additional Protocol to the Geneva Conventions of 1949, submitted by the ICDO, in Official Records, Vol. IV, CDDH/II/ INF.275, pp. 253–259. 82 Commentary Article 67 of Protocol I, pp. 799–802; Commentary Article 63 of Protocol I, p. 747, para. 2475. 83 Article 67 of Protocol I concerns military organisations assigned to civil defence tasks. The first condition is that these military units and members of armed forces must be devoted to the performance of the tasks mentioned in Article 61 and assigned to those tasks permanently and exclusively. Another condition is that, during the whole time of the armed conflict, they may not take part in any military operations, and they should display the international distinctive sign of civil defence. Moreover, they may be armed only with light individual weapons. Another condition is that they may enjoy special status and protection only when operating within the national territory of their State. It should be also noted that military persons engaged in civil defence become prisoners of war if they fall into the hands of an adverse party. The last condition states that the occupying power may request these personnel, who are prisoners of war, to perform civil defence tasks, but only in the interest of the civilian population of that territory. Article 67 also provided that the material and buildings of military civil defence may be disposed of freely by the power in whose hands they reside. 84 Stéphane Jeannet (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, op. cit. p. 6.

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defence personnel would be respected, protected, and authorised to discharge their tasks. Draft Article 31 gave a list of civil defence tasks.85 Several proposals were presented to delete these two Articles,86 and they were deleted by consensus.87 During the Diplomatic Conference, Committee II submitted the text of one article on civil defence, which was adopted.88 But many governments felt that even such a reduced obligation to permit civil defence work was not acceptable; consequently, they submitted a new, shortened version when the draft came to the Plenary Assembly. In the final phase of the Conference, the Plenary Assembly adopted a new approach, in which no mention of civil defence was made.89 2.2.2 Civilian Civil Defence Organisations: Definition and Functions According to Protocol I, “medical personnel” includes the personnel assigned to civil defence organisations, and “religious personnel” includes military or civilian persons attached to civil defence organisations of a party to the conflict.90 This definition was already included in the draft Article 8 submitted to the ICRC at the Diplomatic Conference.91 It should be noted that the status of medical personnel remains constant, despite their assignment to civil defence organisations. This is demonstrated by the fact that they must continue to be identifiable by means of the distinctive emblem of the Red Cross or the Red Crescent.92 85

This Article reads as follows: “Civil defence includes the following tasks: (a) rescue, first aid, conveyance of wounded, fire-fighting; (b) safeguard of objects indispensable to the survival of the civilian population; (c) provision of emergency material and social assistance to the civilian population; (d) emergency repair of public services indispensable to the civilian population; (e) maintenance of public order in disaster areas; (f) preventive measures, such as warning the civilian population, evacuation, provision of shelters; (g) detection and marking of danger areas.” See ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 41. 86 Official Records, Vol. VII, CCDH/II/415, CCDH/II/421, CCDH/427, CCDH/II/417 and CCDH/II/420, pp. 96–99. 87 Ibid., Vol. VII, p. 144. 88 The draft Article stated that, except in the case of imperative military necessity, unarmed civilian personnel of civil defence will be authorised to continue to perform the tasks necessary for the survival of the civilian population: Ibid., Report of Committee II, CDDH/ II/406/Rev.1, paras. 91–92; Ibid., Vol. XIII, CDDH/II/443, pp. 383–384. 89 Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, op. cit., pp. 12 and 64. 90 Article 8(c and d) of Protocol I. 91 ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 5. 92 Commentary Article 66 of Protocol I, pp. 788–789; Commentary Article 8 of Protocol I, p. 126.

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Article 61 of Protocol I gives a more specific definition of the term “civil defence” in its paragraph (a). This definition consists of a list of fifteen specific tasks.93 Their purpose is to protect the civilian population against the effects of hostilities, to help it to recover from their immediate effects, and to provide it with the conditions necessary for its survival. The 1973 draft incorporated a non-exhaustive list of the functions of civil defence by including the term “inter alia” at the beginning of the list.94 This inclusion caused much controversy during the Diplomatic Conference.95 In the end, an exhaustive list was chosen, mainly because of the fear that a non-exhaustive list would allow functions of a non-humanitarian nature to be included. But the delegates of Indonesia and Israel stated that, in many countries, civil defence organisations perform a number of auxiliary tasks not specified in Article 61. Therefore, these organisations should continue to enjoy protection as long as those tasks remain within the principles of humanity and do not constitute acts harmful to the enemy.96 A distinction must indeed be drawn between the civil defence tasks set out in Protocol I—and performed by a number of different organisations—and the civil organisations themselves. The focus will be on NGOs performing civil defence functions in times of armed conflict, not civil defence organisations in general.

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These tasks are: (a) warning; (b) evacuation; (c) management of shelters; (d) management of blackout measures; (e) rescue; (f) medical services, including first aid, and religious assistance; (g) fire-fighting; (h) detection and marking of danger areas; (i) decontamination and similar protective measures; (j) provision of emergency accommodation and supplies; (k) emergency assistance in the restoration and maintenance of order in distressed areas; (l) emergency repair of indispensable public utilities; (m) emergency disposal of the dead; (n) assistance in the preservation of objects essential for survival; and (o) complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organisation. The draft Article 61 stated that “civil defence includes, inter alia: (a) rescue, first aid, conveyance of wounded, fire-fighting; (b) safeguard of objects indispensable to the survival of the civilian population; (c) provision of emergency material and social assistance to the civilian population; (d) emergency repair of public services indispensable to the civilian population; (e) maintenance of public order in disaster areas; (f) preventive measures, such as warning the civilian population, evacuation, provision of shelters; and (g) detection and marking of danger areas.” See ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 18. Official Records, Vol. XII, CDDH/II/SR.60, pp. 58–59 and 63, paras. 30 and 51; CDDH/II/ SR.61, p. 82, paras. 70–71, 76; CDDH/II/SR.62, pp. 86–90, paras. 7–13, 18, 23–25, 33. CDDH/SR.42, Annex to the summary record of the forty-second plenary meeting, Explanations of vote, Official Records, Vol. VI, pp. 229–230.

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As it had been decided to protect civil defence organisations on the basis of function in Protocol I, the question arose whether there was any point in defining the civil defence organisations. The 1973 draft had based the definition of civil defence “on the criterion of the functions exercised.”97 It was easier to define the tasks, rather than the organisations themselves, given the disparate character of such organisations in different countries.98 This approach provided for the possibility that civil defence functions be performed by any civilian at the request of the authorities.99 One delegate stated in response that it would be justified “to grant . . . in the first place protection to specialised bodies in civil defence tasks.”100 In addition, to mention such an organisation makes it easier to define the buildings, transports, and equipment on which the civil defence emblem can be placed.101 Paragraph (b) of Article 61, therefore, defines the civil defence organisations protected by the Protocol. Such organisations must have been structured and authorised by the competent authorities to perform the tasks mentioned under subparagraph (a) and assigned exclusively to such tasks. Exclusive assignment to civil defence tasks may be of a temporary nature only, as the report of Committee II specified.102 This interpretation is based upon the analogy with medical personnel, for which the term “exclusively” is also used in the Protocol.103 Civil defence personnel may, therefore, be assigned alternately to civil defence tasks and to other tasks, but on two conditions: such other tasks must not be harmful to the enemy, and such personnel enjoy protection only while they carry out civil defence tasks.104 The protection is afforded to organisations performing “some or all” of the mentioned tasks. Civil defence organisations may perform only one of these tasks, if other tasks are fulfiled in other ways.105 97 98 99 100 101 102

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Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentaries, ICRC, Geneva, October 1973, pp. 71–72. Official Records, Vol. XI, CDDH/II/SR.51, p. 578; Vol. XII, CDDH/II/SR.60, p. 58; p. 65; CDDH/II/ SR.61, p. 77. Ibid., CDDH/II/SR.60, p. 58. Ibid., Vol. XII, CDDH/II/SR.60, p. 59. Commentary Article 61 of Protocol I, p. 732. The report of Committee II states that “the word ‘exclusively’ is used in order to indicate that these personnel, while assigned to civil defence tasks, must not exercise any other functions”: Official Records, Vol. XIII, CDDH/406/Rev.1, p. 365. This is the official interpretation of the meaning of the word “exclusively” given in the Report of Committee II to the plenary session; Official Records, Vol. XIII, p. 365. Commentary Article 61 of Protocol I, p. 733. Commentary Article 61 of Protocol I, p. 731; Jakovljevic, Bosko, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights,

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Moreover, civil defence organisations include all kind of bodies which are necessary for its work, such as administrative services and organs engaged in planning, organisation, training of cadres, etc.106 Subparagraph (c) of Article 61 of Protocol I defines civil defence personnel without specifying that they must belong to civil defence organisations. Such personnel must be assigned exclusively to the performance of civil defence tasks by the Party to the conflict concerned. Finally, regarding the relationship between personnel covered in this Article and personnel in occupied territory covered by Article 63 of the Fourth Convention, Committee II made the following remark: “The definition of civil defence organisations in this Article in no way deprives individuals carrying out civil defence tasks of their rights under this Part, so long as they are part of, or under contract to, an organisation of the type referred to in Article 63 of the Fourth Geneva Convention of 1949; and there is no need for them to belong to or be embodied in a formal unit.”107 According to Article 61, civil defence is organised or authorised by the State. For example, civil defence is generally militarised in Africa.108 In fact, civil defence is composed in many countries of bodies set up by the government. These bodies have their independence or autonomy, but they are included in civil defence because of their specific tasks (such as fire brigades).109 In a number of European countries, civil defence organisations are constituted as NGOs as, for example, in Germany,110 Russia,111 and France.112

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op. cit., p. 35; “Report of Committee II to the plenary session,” in Official Records, Vol. XIII, CDDH/406/Rev.1, p. 365. Ibid., p. 37. Official Records, Vol. XIII, CDDH/406/Rev.1, p. 365. For example, in Mali, Niger, Burkina Faso, and Senegal, civil defence comes under the interior or territorial ministries, and its personnel are seconded by the military authorities. Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, op. cit., p. 36. In a conference on civil defence, Dr. Wittschen explained that, in his native Germany, governmental and non-governmental organisations were authorised by the Government or government agencies to carry out civil protection tasks side by side on an equal footing. The structure was exclusively civilian and did not involve any military personnel: Stéphane Jeannet (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, op. cit., p. 30. In the same conference, it was noted that, in the Russian Federation, civil defence had been totally separated from the military since 1992: Stéphane Jeannet (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, op. cit., p. 42. Les organismes de protection civile en France sont créés comme des associations en vertu de la Loi 1901.

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The personnel of civilian civil defence organisations of neutral States should perform civil defence tasks on the territory of a warring party with the latter’s consent and under its control. All of the adverse parties should be notified of this fact.113 It must be assumed that such personnel act with the consent of their own State.114 The activities of the civil defence organisations must be performed “with due regard to the security interests of the Parties to the conflict concerned.” There is also a coordinating role which may be played by the “relevant international organisations.”115 The discussions at the Committee II indicate that “relevant international organisations” comprise the ICDO and any organisations that might be created in the future.116 It should not be forgotten that the protection of the Protocol is confined to organisations assigned “exclusively” to civil defence tasks.117 The word “relevant” is used here in the sense of being “specialised in the field.”118 Moreover, it is self-evident that the organisations concerned must be civilian organisations.119 Paragraph 2 describes the role of international organisations as one of coordination; they do not render assistance themselves, but rather, they coordinate the assistance given by national civil defence bodies of neutral and other States that are not parties to the conflict.120 2.3 Mandate of the Civil Defence Organisations The mandate of civil defence organisations corresponds to the list of tasks mentioned in Article 61 of Protocol I and in the commentary on Article 63 of the Fourth Geneva Convention. Such tasks are purely humanitarian, are on

113 Article 64 of Protocol I. 114 Analogous to Article 27 of the First Convention, and because civil defence organisations must be set up or authorised by the authorities of the Party to which they belong: Commentary Article 64 of Protocol I, p. 761, para. 2542. 115 Paragraph 2 of Article 64. Draft Article 64 submitted to the ICRC at the Diplomatic Conference contained similar provisions: see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 19. 116 Official Records, CDDH/II/SR.60, p. 62; Official Records. CDDH/II/SR.92, p. 384; Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, op. cit., p. 50. 117 Commentary Article 64 of Protocol I, p. 765, para. 2568. 118 Ibid., p. 765, para. 2569. 119 Ibid., p. 765, para. 2570. 120 Bosko Jakovljevic, New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights, op. cit., pp. 50–51.

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behalf of the civilian population, and are particularly comprised of warning, rescue and maintenance, fire protection, medical service, construction of shelters, and other measures to restore and maintain order.121 Although the list of civil defence tasks in Protocol I is exhaustive, scholars have stated that it is reasonable to interpret the provision as meaning that a task not expressly included may also be allocated to civil defence, as long as it serves the well-being of the civilian population in war.122 3

Civilian Relief/Medical Personnel

This section refers to the medical personnel, also named the “personnel of the sanitary service” or “sanitary personnel,” according to the 1880 Laws of War on Land and the Geneva Convention of 1906.123 “Medical personnel” is referred to in the 1913 Manual of the Laws of Naval War,124 the Geneva Convention of 1929,125 the First,126 the Second,127 the Third,128 and the Fourth 1949 Geneva Conventions,129 in Protocols I130 and II,131 and in the 1994 San Remo Manual.132 Such personnel are therefore mentioned in provisions covering both international and non-international armed conflicts. According to the text of the IHL treaties,133 medical personnel comprise the medical personnel proper and the administrative personnel engaged in the administration of units and hospitals.134 121 See Article 61 of Additional Protocol I. 122 Hans-Peter Gasser, “Protection of the Civilian Population,” in Dieter Fleck (ed.), The Handbook of IHL in Armed Conflicts, Oxford University Press, Oxford, 2008, p. 265. 123 Articles 9, 13, 14, 15, and 83 of the Laws of War on Land (Oxford, 9 September 1880) and Articles 1, 8, 9, 11, 13, 14, 17, 20, 21, 22, 23, and 26 of the Geneva Convention of 1906. 124 See Article 64 of the Manual. 125 Articles 1, 8, 9, 11, 13, 14, 17, 18, 21, 22, 23, and 24. 126 Articles 4, 6, 7, 9, 10, 11, 12, 15, 19, 22, 24, 26, 27, 28, 29, 30, 31, 32, 36, 40, 41, 42, 44, 46, 47, and Annex II. 127 Articles 5, 6, 7, 9, 10, 11, 18, 35, 36, 37, 39, 42, 47, 48, and Annex. 128 Articles 4, 30, 32, and 33. 129 Articles 17, 20, 22, 56, 91, and 95. 130 Articles 8, 9, 11, 12, 13, 14, 15, 18, 22, 23, 28, 33, 43, and 85. 131 Articles 9 and 12. 132 Articles 164 and 178 of the Manual. 133 According to Article 13 of the 1880 Laws of War on Land; Article 9 of the 1929 Geneva Convention; Article 24 of the first Geneva Convention and Article 8 of Protocol I. 134 Commentary Article 4 of the First Geneva Convention, p. 62; Commentary Article 28 of the First Geneva Convention, p. 251; Commentary Article 5 of the Second Geneva Convention, p. 44; Commentary Article 33 of the Third Geneva Convention, p. 223.

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The term “medical personnel” also comprise civilian and military personnel. The medical personnel of the armed forces are part of the armed forces and are intended solely to care for the wounded and sick.135 The medical personnel of the armed forces comprise both the auxiliary medical personnel136 and the permanent medical personnel.137 135 Final Record, Report of Committee I, Vol. I, p. 185. 136 Article 9 of the 1929 Geneva Convention states that “soldiers specially trained to be employed, in case of necessity, as auxiliary nurses or stretcher-bearers for the collection, transport, and treatment of the wounded and sick, and furnished with a proof of identity, shall enjoy the same treatment as the permanent medical personnel if they are taken prisoners while carrying out these functions.” The 1947 Conference pointed out the difficulty of granting temporary personnel any privileges, and therefore stated that these personnel shall not enjoy protection: Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, op. cit., p. 33. The auxiliary medical personnel of the armed forces are further defined in Articles 25 and 41 of the First Geneva Convention. The auxiliary medical personnel constitute a special military category employed only on medical duties for part of their time. For the remainder of their time, they may be employed on any other form of military work: Commentary Article 25 of the First Geneva Convention, p. 221; Commentary Article 41 of the First Geneva Convention, p. 316; ICRC, The Geneva Conventions of August 12, 1949, Analysis for the Use of National Red Cross Societies, Vol. I, ICRC, Geneva, 1950, p. 34. Such auxiliary personnel can include only auxiliary stretcher-bearers, hospital orderlies, and nurses (not doctors or administrative staff) employed in the search for, or the collection, transport, or treatment of the wounded. To be accorded immunity, auxiliary personnel must have received special medical training beforehand. The 1949 Geneva Convention has retained the category of auxiliary personnel, but with a complete change in the manner in which they are to be protected. They will now be protected “if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands,” i.e. on the battlefield. Once in enemy hands, however, they will become ordinary prisoners of war without any right to repatriation: Commentary Article 25 of the First Geneva Convention, pp. 221–223. For this reason, Article 41 of the First Geneva Convention specifies that such personnel should have indicated on their military identity card the nature of the medical training they have undergone, the temporary nature of their duties, and their right to wear an armlet. They must also wear the armlet. 137 According to Article 9 of the 1929 Geneva Convention, the permanent medical personnel are “the personnel engaged exclusively in the collection, transport, and treatment of the wounded and sick . . . attached to armies.” Articles 24 and 40 of the First Geneva Convention also refer to the permanent medical personnel of the armed forces. According to Article 24, such personnel fall into two categories, which were previously identified in the 1906 and 1929 Conventions: “Medical personnel proper” and “Administrative Staff.” Medical personnel proper are the doctors, surgeons, dentists, chemists, orderlies, nurses, stretcher-bearers, etc., who give direct care to the wounded and sick. They are exclusively (i.e. permanently) employed in the search for and collection, transport, and treatment of the wounded and sick, and the prevention of disease. Administrative staff look after the

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This section will detail only the civilian medical personnel, who include medical personnel of the staff of National Societies, medical personnel of aid societies, impartial humanitarian bodies, neutral medical personnel, civilian medical personnel, and the personnel participating in relief actions, all of which have a similar mandate. 3.1 Medical Personnel of the Staff of National Societies Article 13 of the 1880 Laws of War on Land refers to “persons employed in hospitals and ambulances, including . . . the members and agents of relief associations which are duly authorized to assist the regular sanitary staff.” This category includes the National Societies. The 1906 and 1929 Geneva Conventions,138 the First Geneva Convention,139 and Protocol I140 also mention that medical personnel include the personnel of the National Societies. Other provisions are also interpreted to reach the same conclusion. According to the Commentary on the Second Geneva Convention, the medical personnel of hospital-ships will belong either to the medical service of a administration of medical units and establishments, without being directly concerned in the treatment of the wounded and sick. They include office staff, ambulance drivers, cooks, cleaners, etc. Under Article 40, the permanent personnel are authorised to wear a special identity card and the distinctive armlet, issued and stamped by the military authority.  Article 22 of the Protocol I and Article 36 of the Second Geneva Convention relate to the medical personnel of hospital ships, and those of Article 37, to the medical personnel who might be on board coastal rescue craft. Article 23 of Protocol I relates to medical personnel of ships and craft when they have fallen into the hands of an enemy. The crew of such ships are considered medical personnel in the sense of the Protocol and are, therefore, also covered under Article 37 of the Second Geneva Convention. Permanent medical personnel are protected. 138 Articles 10 of the 1906 and 1929 Geneva Conventions mention “the personnel of volunteer/voluntary aid societies, which also include National Societies,” as stated by the ICRC delegate in the 1949 Diplomatic Conference; Final Record, Committee I, Vol. II-A, p. 78. 139 Article 26 of the First 1949 Geneva Convention specifies “the staff of National Red Cross Societies and that of other voluntary aid societies.” In Article 27 of the First 1949 Geneva Convention, the societies referred to are the same as those mentioned in Article 26; namely, the National Red Cross and Red Crescent Societies, as well as the other voluntary aid societies. Commentary Article 27 of the First Geneva Convention, pp. 230 and 232; Commentary Article 9 of Protocol I, p. 142, para. 433. 140 Article 8(c)(ii) of Protocol I defines medical personnel as “medical personnel of national Red Cross (Red Crescent, Red Lion and Sun) Societies and other national voluntary aid societies.” Committee II elaborated this definition on the basis of an amendment presented by seven countries: Official Records, Vol. III, CDDH/II/19 and Corr.1, pp. 46–47.

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belligerent or to a National Society.141 Article 56 of the Fourth Geneva Convention states that “medical personnel of all categories shall be allowed to carry out their duties” in an occupied territory, which can include the personnel of the National Society of the country. Article 12 of Protocol II mentions that medical personnel should display the distinctive emblem of the Red Cross or Red Crescent. Although no specific definition of medical personnel was adopted in Protocol II, the Working Group that examined this Article elaborated a draft definition of medical personnel, which included “medical personnel of Red Cross (Red Crescent, Red Lion, and Sun) organizations.”142 In practise, the personnel of the National Societies will become part of the army medical service and be placed under its control, without becoming members of that service and, hence, of the armed forces.143 3.2 Medical Personnel of Voluntary Aid Societies Several Articles of the Geneva Conventions144 and Protocol I145 mention “the personnel of volunteer/voluntary aid societies” when referring to medical personnel. In addition, interpretation of the 1880 Laws of War on Land146 and the Fourth Geneva Convention147 reach towards the same analysis. Finally, Protocol I defines medical personnel as the personnel of an aid society of a neutral State.148 The text of the Protocol is slightly more r­estrictive 141 Commentary Article 36 of the Second Geneva Convention, pp. 204–205. 142 Official Records, Vol. XIII, CDDH/II/386, p. 346. 143 Jean-Pierre Schoenholzer, Nurses and the Geneva Conventions of 1949, ICRC, Geneva, 1957, p. 6. 144 Articles 10 of the 1906 and 1929 Geneva Conventions; Article 26 of the First 1949 Geneva Convention. Article 33 of the Third Geneva Convention refers to the “members of the medical personnel retained by the Detaining Power with a view to assisting prisoners of war.” According to paragraph (b) of this Article, the medical personnel include “that of societies mentioned in Article 26 of the [First] Geneva Convention.” 145 Article 8(c)(ii) of Protocol I also includes in the definition of medical personnel the medical personnel of National Societies and “other national voluntary aid societies duly recognized and authorized by a Party to the conflict.” 146 Article 13 of the 1880 Laws of War on Land. 147 Article 56 of the Fourth Geneva Convention states that “medical personnel of all categories shall be allowed to carry out their duties” in an occupied territory. The Commentary on this Article states that “medical personnel of all categories” means all people engaged on a branch of medical work, whether such persons are or are not attached to a hospital. For example, doctors, surgeons, dentists, pharmacists, midwives, medical orderlies, and nurses, stretcher bearers, ambulance drivers, etc.: see Commentary Article 56 of the Fourth Geneva Convention, p. 314. 148 Article 8(c)(iii) of Protocol I.

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than that of the First Convention. The Convention permits the authorised society to give the assistance of its personnel independently from that of its medical units, while the Protocol envisages making available only the personnel attached to medical units and transports. However, this restriction does not apply to the societies referred to in the first Convention.149 The Geneva Convention mentions the State, which accepts the assistance of the aid society, while the Protocol also considers entities that are not States as being possible parties to the conflict.150 3.3 Medical Personnel of Impartial Humanitarian Bodies Article 8(c)(iii) of Protocol I defines as medical personnel the personnel made available to a Party by an impartial international humanitarian organisation. Hospital-ships of an impartial humanitarian organisation are also protected in Protocol I.151 The Commentary on Protocol I indicates that “impartial humanitarian organisation” can refer either to governmental or non-governmental organisations, which, the Commentary adds, amounts to an open invitation, as it is not possible to designate the organisations that comply with the required criteria and are ready to make medical personnel, units, and transport available. The Commentary states that the consent of the government of the country where the organisation is established is irrelevant here, since it is an international organisation. But the organisation must comply with the two characteristics mentioned in the Protocol: it must be impartial, and it must have a humanitarian character.152 3.4 Neutral Medical Personnel A recognised society of a neutral State/country can lend the services of its ­sanitary/medical personnel to a belligerent.153 Relevant provisions therefore 149 Commentary Article 9 of the Protocol I, p. 141, para. 428. 150 Commentary Article 9 of Protocol I, p. 140, para. 423; Commentary Article 1 of Protocol I, pp. 41–56. 151 Article 22(2) of Protocol I provides that “the protection provided by the Conventions . . . shall extend to hospital ships made available for humanitarian purposes to a Party to the conflict . . . by an impartial international humanitarian organization.” 152 Commentary Article 9 of Protocol I, p. 143, paras. 437–440; Commentary Article 22 of Protocol I, p. 259, para. 880. For a definition of “impartial” and “humanitarian,” refer to Chapter 3. 153 According to Article 11 of the 1906 Geneva Convention, Article 11 of the 1929 Geneva Convention, Article 27 of the First 1949 Geneva Convention, Article 36 of the Second Geneva Convention and Article 9 of Protocol I. As seen previously, the term “neutral

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apply to National Societies and other voluntary aid societies assisting the medical service belonging to neutral countries. These persons cannot be detained, according to Article 32 of the First 1949 Geneva Convention. This is because, in giving medical aid to a belligerent, neutral volunteers are not incorporated into the belligerent forces.154 Neutral medical personnel can also be found on hospital-ships.155 They should, however, have placed themselves under the control of one of the parties to the conflict, with the previous consent of their governments and with the authorisation of the other party to the conflict.156 These criteria are, therefore, similar to the criteria applying to National Societies and other voluntary aid societies. Article 25 of the Second Convention specifies that the hospital ship is “utilised” by the society or the private person making it available, which implies that the latter provides the necessary crew and medical personnel. Since Article 22 does not specify whether the ship is made available with or without an adequate crew and medical personnel, it must be recognised that both possibilities exist.157 3.5 Civilian Medical Personnel 3.5.1 Personnel of Civilian Hospitals The Commission of the 1946 Conference of National Red Cross Societies recommended that civilian hospitals be protected by the Red Cross emblem, if “establishments [care] for sick and wounded civilians” and are authorised by

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State” has been replaced in Article 9 of Protocol I by the expression “neutral or other State not a Party to the conflict.” The Protocol, contrary to the Conventions, considers entities that are not States as being possible parties to the conflict. The reference to the “relevant” provisions of Articles 27 and 32 of the first Convention makes it possible to overcome this difference and to read these articles within the meaning of the Protocol. This Article has, therefore, remained almost identical to the corresponding Article 12 of the 1929 Convention, but relates only to neutral volunteers: Commentary Article 32 of the First Geneva Convention, p. 268. See Article 25 of the Second Geneva Convention. Similarly, Article 22 of Protocol I provides protection for “hospital ships made available for humanitarian purposes to a Party to the conflict by a neutral or other State which is not a Party to that conflict.” Under the Third Hague Convention of 1899, hospital ships giving neutral assistance depended only on their Power of origin. When the 1907 revision was drawn up, the contrary opinion was adopted, and it was specified that neutral hospital ships must in the future be placed under the control of one of the Parties to the conflict. See The Conference of 1907, Vol. III, Oxford University Press, New York, 1920, pp. 293–296; Commentary Article 25 of the Second Geneva Convention, p. 168. Commentary Article 22 of the Protocol I, pp. 259–260, para. 879.

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the government.158 The 1947 Conference of Governments Experts also discussed the issue and subjected the protection to two conditions: hospitals had to be recognised by the State, and they had to be organised for the permanent purpose of treatment of sick and wounded civilians.159 The provisions were approved by the Conference without marked change.160 Therefore, Article 20 of the Fourth Geneva Convention refers to the “persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of, and caring for wounded and sick civilians, the infirm, and maternity cases.” It also offers protection to the “other personnel who are engaged in the operation and administration of civilian hospitals.” The term “regularly” excludes all occasional personnel attached to the hospital only temporarily. The term “solely” implies the permanent character of the engagement, or the attachment of the personnel to the hospital, to the exclusion of any other occupation. The two qualifications are cumulative. A surgeon, for example, who is working regularly, but not exclusively, in a hospital because some of his time is given to his private practise, would not fulfil the conditions.161 Moreover, the wording covers the staff not only when they are in the hospital itself, but also when they have to perform any duty away from the hospital buildings.162 The “other personnel” refers to temporary personnel, which includes such individuals as surgeons who, apart from their private practise, come regularly to operate at the hospital, nursing aids who come two afternoons a week, and the night watchman who has other work during the day. A condition which applies to this category of staff is that they should belong to that organised whole, with its ranks and grades, known as a hospital.163 Immunity will be accorded to temporary personnel for the period during which they are employed in the hospital.164 158 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 63–64. 159 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, op. cit., pp. 69–71. 160 XVII International Red Cross Conference: Revised and New Draft Conventions for the Protection of War Victims, Geneva, 1948, International Red Cross Committee, Geneva, 1948, p. 120. 161 Ibid., Vol. II-A, pp. 705–706 and 819. 162 Commentary Article 20 of the Fourth Geneva Convention, pp. 159–160; Oscar Uhler, “Civilian Hospitals and their Personnel,” International Review of the Red Cross, August– October 1953, pp. 28–29. 163 Commentary Article 20 of the Fourth Geneva Convention, p. 165. 164 Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., pp. 36–38.

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Article 18 of the Fourth Geneva Convention refers as well to “civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases.” The delegate from Bulgaria at the Diplomatic Conference deleted the word “exclusively” in the sentence “personnel exclusively engaged” to protect such people as surgeons who tend to their own private patients in addition to their hospital work. Draft Article 18, as modified, was adopted.165 The enumeration of the different types of patients is not to be taken as cumulative in character; a civilian hospital can treat only some types of patients. Moreover, such a hospital does not need to be a permanent hospital; it can be improvised.166 To prevent abuse, the use of an emblem should be limited to hospitals controlled by a State. The recognition of the State is to be given in a certificate in accordance with a public law act. The ICRC proposed that the competent authority should be the authority in each country under whose control the Red Cross was placed. The Stockholm Conference, however, recommended that permission be granted by the State and the National Society.167 In fact, it is not specified which authority is charged with issuing the certificate of recognition; States are therefore free to delegate their powers to a governmental institution or an NGO (for example, the National Society).168 Belgium submitted a proposal to grant all civilian hospitals the protection of the Convention even if they had not received State recognition, but the Drafting Committee rejected this suggestion.169 The 1949 Diplomatic Conference faced differences of opinion regarding the definition of “civilian hospitals,”170 and Article 20 was discussed at length. The second paragraph of the draft Article conferred the right to wear the armlet only to staff exclusively engaged in caring for the wounded and sick, as well as medical personnel exclusively engaged in the administration of the hospitals. The Committee determined that there was no point in maintaining these two categories, but rather, it was preferable for them to be grouped together. Extension to the authorities charged with administration of public health and hygiene services, as proposed by certain delegations, was not approved. The Committee further declined to include among persons benefiting from 165 166 167 168

Ibid., Committee III, Vol. II-A, pp. 705–706. Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., pp. 7–8. Final Record, Committee III, Vol. II-A, p. 633. Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., p. 14; Final Record, Vol. II-B, p. 469. 169 Final Record, Committee III, Vol. II-A, pp. 700–701. 170 Final Record, Vol. II-A, pp. 701–703, Vol. II-B, pp. 392–395 and 469–472.

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protection those temporarily engaged in such work. The Committee, however, added to the duties entitling personnel to protection (removal, transport, and care of wounded and sick) the search for them, including hospital personnel who, in catastrophes or fire, explore ruins with the object of saving victims.171 3.5.2 Civilian Personnel At the 1929 Diplomatic Conference, the delegation from Finland supported the idea of creating a protection for civilian medical personnel, but this was not adopted.172 During the 1947 Conference, it was also proposed to add to Article 8 of the 1929 Convention a paragraph providing that medical units or establishments not be deprived of protection on the condition that “the humanitarian activities of medical units and establishments or those of their personnel are extended to civilians.” However, the Conference did not endorse this addition.173 The 1949 and 1977 Diplomatic Conferences adopted several provisions for the protection of civilian personnel. A general provision covers “medical personnel of all categories,”174 including all people engaged in a branch of medical work.175 Three other provisions of the Geneva Conventions and Protocol I similarly grant the possibilities to civilians to voluntarily collect and care for the wounded and sick, and to collect the dead.176 This appeal to civilians primarily concerns doctors and nurses.177 Other provisions of the Fourth Geneva Convention provide, by agreements concluded between belligerents, for the establishment of civilian hospital zones to protect “wounded, sick, and aged persons, children under fifteen, 171 Final Record, Report of Committee III, Vol. II-A, p. 819. 172 Paul Des Gouttes, Commentaire de la Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, CICR, Genève, 1930, pp. 56–57. 173 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, op. cit., pp. 25–26. 174 Article 56 of the Fourth Geneva Convention. 175 Commentary Article 56 of the Fourth Geneva Convention, p. 314. 176 Article 18 of the First 1949 Geneva Convention provides that “the military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for, under their direction, the wounded and sick . . . and shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.” Article 21 of the Second Convention also states that “the Parties to the conflict may appeal to the charity of commanders of neutral merchant vessels, yachts or other craft, to take on board and care for wounded, sick or shipwrecked persons, and to collect the dead.” Similarly, Article 17 of Protocol I provides that the civilian population ”shall be permitted, even on their own initiative, to collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas.” 177 Jean-Pierre Schoenholzer, Nurses and the Geneva Conventions of 1949, op. cit., pp. 24–25.

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expectant mothers, and mothers of children under seven,” and for neutralised zones to shelter wounded and sick combatants or non-combatants and those who care for them.178 These categories of persons will nearly always require the large staff of a hospital, and they concern doctors and nurses. In 1949, the Conference refused to extend the protection of the Convention and the use of the emblem to all civilian medical personnel. The Conference judged that such an extension to groups not well-defined and with neither regular incorporation nor strict control would increase the risks of abuse of the distinctive sign and would weaken its protection. But the Diplomatic Conference of 1974 changed this policy, and, through Protocol I, the civilian medical personnel enjoy immunity. However, to benefit from protection, civilian personnel must be authorised by the State.179 The need “to be recognised and authorised” concerns civilian medical units of a National Society, by a neutral State, by an aid society, or by an impartial international humanitarian organisation.180 It may also concern private medical units, such as private clinics and ambulance services. The need to belong to one of the Parties to the conflict concerns particularly hospitals and ambulance services of the State.181 3.6 Personnel Participating in Relief Actions Personnel participating in relief actions are mentioned in Articles 70 and 71 of Protocol I. Such personnel are therefore only mentioned in a treaty covering international armed conflicts. These two articles provide that in case the civilian population of a territory, other than an occupied territory, is not adequately provided with supplies, humanitarian and impartial relief actions can be undertaken and are subject to the agreement of the Parties. There is no further definition of these personnel in Protocol I. However, the commentary 178 Articles 14 and 15 of the Fourth Geneva Convention. 179 Jean Pictet, “La profession médicale et le droit international humanitaire,” op. cit., p. 211. Several scholars argued before the Protocols for an extension of the protection to civilian medical personnel; see in particular Frédéric De Mulinen, “Le Comité international de la Croix-Rouge et les services de santé des armées,” Revue internationale de la croix-rouge, No. 680, août 1975, pp. 469–473. At its 54th session in 1970, the International Law Association also adopted a resolution requesting an extension of the Geneva Convention to the civilian medical personnel: see Comité International de la Croix-Rouge, “54eme Conférence de l’International Law Association,” Revue internationale de la croix-rouge, No. 622, octobre 1970, pp. 665–666. 180 Commentary Article 12 of Protocol I, p. 169, paras. 524–528. 181 Indeed, Article 12 of Protocol I refers to “civilian medical units” belonging to “one of the Parties to the conflict; or recognized and authorized by the competent authority of one of the Parties to the conflict; or are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First Convention.”

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provides that “this also applies to actions undertaken by impartial humanitarian organizations, such as the ICRC.”182 Such personnel were first mentioned in an addition to draft Article 70 of Protocol I, aimed at including them among the elements for which the Parties must authorise transit along with relief provisions and equipment.183 A proposal was then made to mention it as well in the paragraph devoted to the obligations of the receiving party.184 Finally, the question was taken up again by a Working Group of Committee II, which proposed the introduction of a new article especially devoted to such personnel. This article was adopted with some modifications by Committee II and then by the Conference.185 Under Article 71 of Protocol I, the participation of relief personnel “shall be subject to the approval of the Party in whose territory they will carry out their duties.” This refers to the party exercising control over this territory, which, in occupied territories, is the Occupying Power. Under Article 71, relief personnel should assist in particular with the transportation and distribution of relief consignments. Therefore, this personnel is technical; experts in transport, relief administration, and organisation. The participation of medical or paramedical personnel is not explicitly mentioned, but it is also not excluded.186 3.7 Mandate of the Medical Personnel The mandate of the medical personnel is to engage in the search for or the collection, transportation, diagnosis, or treatment, including first aid treatment, of the wounded and sick, or to facilitate the prevention of disease.187 These are the doctors, surgeons, dentists, chemists, orderlies, nurses, stretcher-bearers, etc., who give direct care to the wounded and sick. The 1949 Conference added prevention of disease to the list. It was necessary to include it, since hygienic and prophylactic measures for the prevention of disease, such as inoculation, delousing, and disinfection of water supply, now form an important part of the work of the medical staff.188 As seen previously, the medical personnel include those engaged in the administration of medical units and establishments. Since they ensure the 182 183 184 185 186 187

Commentary Article 70 of Protocol I, p. 817, para. 2804. Official Records, Vol. III, CDDH/II/398 and Add.1, p. 280. Ibid., Vol. XII, CDDH/II/SR.84, p. 319. Commentary Article 71 of Protocol I, p. 831, para. 2874. Commentary Article 71 of Protocol I, p. 833, paras. 2879–2881. See in particular Article 9 of the 1929 Geneva Convention, Article 24 of the First 1949 Geneva Convention, and Article 8 of Protocol I. 188 Commentary Article 24 of the First Geneva Convention, pp. 218–219.

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functioning of the units, they include the administrators as well as support personnel, such as, for example, hospital cooks and cleaners. They also ensure the operation or administration of medical transports. Finally, it should be mentioned that many of the rules regarding medical personnel have been inserted in national laws of war/military manuals and national legislation.189 In the ICRC Study on Customary International Humanitarian Law, it is demonstrated that the definition of medical personnel contained in Protocol I has become part of customary law.190 For Michael Bothe, this is an important conclusion that should be welcomed; it proves that the extension of medical personnel from the military to the civilian domain is no longer limited to the parties to Protocol I. 191 4

The Civilian Religious Personnel

4.1 Personnel Supporting the Sick and Wounded According to the Geneva Conventions, religious personnel are giving spiritual assistance to sick and wounded of one party to the conflict. These usually include religious personnel assigned to the medical or spiritual care of the protected persons192 and the religious personnel of hospital-ships.193 Such personnel are attached to the armed forces.194 However, the section below will 189 ICRC, Customary IHL, Practice, Vol. II, edited by Louise Doswald-Beck and Jean-Marie Henckaerts, Cambridge University Press, Geneva, 2005, pp. 457–469. 190 Louise Doswald-Beck and Jean-Marie Henckaerts (eds.), Customary IHL, Cambridge University Press, Cambridge, Geneva, 2005, Vol. I, Rules, p. 79. 191 Michael Bothe, “Customary IHL: Some Reflections on the ICRC Study,” in Timothy L.H. McCormack and Avril McDonald (eds.), Yearbook of IHL, Vol. 8, T.M.C. Asser Press, Cambridge, 2005, p. 171. 192 Article 2 of the 1864 Geneva Convention; Article 7 of the 1868 Geneva Convention; Article 64 of the 1913 Manual of the Laws of Naval War; Article 7 of the Hague 1899 Convention III; Article 10 of the Hague 1907 Convention X; Article 37 of the Second Geneva Convention; Article 23 of Protocol I. The texts prior to the 1949 Geneva Convention were also applicable to civilians. But, during the discussion on Article 37, the Committee restricted protection exclusively to personnel engaged in the spiritual assistance of the persons protected by the Second Convention and considered that the case of purely civilian personnel came within the scope of other Conventions: Final Record, Report of Committee I, Vol. II-A, p. 204. 193 Article 36 of the Second Geneva Convention. 194 The delegation from the Netherlands even suggested that Article 37 of the Second Geneva Convention should say to whom the personnel were to be returned and that the words, “to the belligerent on whom they depend,” should be inserted in the first paragraph, a proposal which was, however, rejected. See Final Record, Committee I, Vol. II-A, p. 130.

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not examine these personnel, who cannot be assimilated to NGOs due to the lack of independence from the State. This section will examine the religious personnel of National Red Cross Societies and that of other voluntary aid societies,195 as well as the religious personnel of a recognised Society of a neutral country.196 These personnel support the sick and wounded and are frequently part of the medical personnel, as mentioned in the Geneva Conventions. Protocol I extended the definition of civilian religious personnel mentioned in the Geneva Conventions. According to Article 8 of Protocol I, “religious personnel” refers to persons who are exclusively engaged in the work of their ministry. These personnel should be attached to medical units, to transports of a neutral aid society or of an impartial international humanitarian organisation, or to civil defence organisations of a party to the conflict. The definition formulated for Protocol II mentions, in addition, that religious personnel can be attached to medical units of relief societies authorised by a party to the conflict.197 The Working Group that studied questions relating to Articles 15, 16, and 18 of Protocol II questioned whether “religious personnel “ should have a wider scope in this Protocol than it had in Protocol I and in the First and Second Geneva Conventions.198 After analysis, the Working Group decided that religious personnel should be defined the same way in the two Protocols.199 In accordance with these definitions, and similar to the medical personnel, the two criteria for religious personnel are attachment and exclusivity.200 Lay preachers who pursue another full-time occupation and are involved only in

195 Articles 10 and 20 of the 1906 Geneva Convention; Articles 10 and 21 of the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field; Article 26 of the First Geneva Convention; Article 33 of the Third Geneva Convention. 196 Article 27 of the First Geneva Convention; Article 33 of the Third Geneva Convention. 197 “Religious personnel means persons such as chaplains, whether military or civilian, exclusively engaged in the work of their ministry and attached either to: (i) the armed forces or other armed groups of a party to the conflict, or to (ii) medical units of a party to the conflict, or to (iii) medical units of the aid societies referred to in sub-paragraph (f)”: Official Records, Vol. XIII, CDDH/II/386, p. 347. 198 Official Records, Vol. XI, CDDH/II/SR.31, p. 318. 199 Commentary Article 9 of Protocol II, pp. 1418–1419; Jean-Luc Hiebel, Assistance spirituelle et conflits armés, Institut Henry-Dunant, Genève, 1980, p. 355. 200 Stefan Lunze, “Serving God and Caesar: Religious Personnel and their Protection in Armed Conflict,” International Review of the Red Cross, No. 853, March 2004, p. 74.

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part-time religious ministry do not, therefore, fulfil the exclusivity criterion. Carrying out medical tasks, however, does not infringe upon this criterion.201 Therefore, religious personnel who assist the sick and wounded benefit from the same facilities and status as civilian medical personnel. They are also frequently associated with medical personnel. For example, civilian religious personnel include the civilian personnel of medical ships.202 These personnel are mentioned in provisions covering both international and non-international armed conflicts. 4.2 Personnel Supporting the Prisoners of War Personnel supporting the prisoners of war comprise the ministers (not belonging to the prisoners’ camp) or laymen203 giving spiritual assistance to prisoners of war. With the consent of the Detaining Power, a treatment similar to that provided to detained chaplains may be granted to prisoners of war who are ministers of a religion without having officiated as chaplains to their own forces.204 This takes into account the situation of prisoners of war who do not have the assistance of either a retained chaplain or a prisoner of war minister of their faith. Therefore, the Convention introduces a procedure to select another minister to assist the prisoners of war.205 The person appointed may well be a chaplain or civilian minister of the Detaining Power, as was the case at the United States military base at Guantánamo Bay.206 201 Stefan Lunze, “Serving God and Caesar: Religious Personnel and their Protection in Armed Conflict,” op. cit., p. 75. 202 See Article 7 of the 1868 Geneva Convention; Article 7 of The Hague 1899 Convention III; Article 10 of The Hague 1907 Convention X; Article 64 of the 1913 Manual of the Laws of Naval War. The 1868 Geneva Convention, the Hague Conventions, and the 1913 Manual of the Laws of Naval War spoke of religious personnel of any captured vessel, thus putting on the same footing warships, merchant ships and other vessels. Draft Article 9 of Protocol II, as submitted by the ICRC in 1973, and in subsequent amendments, always mentioned medical personnel and religious personnel, “whether military or civilians.” This mention was later deleted: see ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 38 and Official Records, Vol. IV, CDDH/II/228, CDDH/II/233 and Add.1, CDDH/ II/243, CDDH/II/388, pp. 52–54. 203 See Article 37 of the Third Geneva Convention. This reference was inserted by the 1949 Diplomatic Conference to meet a point raised by the Indian Delegate: see Final Record, Vol. II-A, p. 439. 204 Article 36 of the Third Geneva Convention. 205 Articles 35 and 37 of the Third Geneva Convention. 206 Stefan Lunze, “Serving God and Caesar: Religious Personnel and their Protection in Armed Conflict,” op. cit., p. 78.

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At the 1949 Diplomatic Conference, several delegations considered that there was a risk that this might give the Detaining Power an opportunity to introduce among prisoners of war a person who might be a propaganda agent. It was therefore specified that the appointment of the minister shall be made at the request of the prisoners concerned and shall be subject to the approval of the Detaining Power and, wherever necessary, of the local religious authorities.207 Protocol I does not prohibit the temporary assignment of laymen for religious purposes or their protection during the fulfilment of these tasks.208 Such personnel do not include prisoners of war who are ministers of religion without having officiated as chaplains to their own forces. Article 16 of the 1929 Geneva Convention states that “Ministers of religion, who are prisoners of war . . . shall be allowed freely to minister to their co-religionists.” At the 1949 Diplomatic Conference, the ICRC delegate drew attention to this expression, stating that the expression applied to persons who were ministers of religion in civilian life, but had not been enroled in medical units or other units of protected personnel.209 The Third Geneva Convention contains a similar provision.210 These Articles, however, apply to ministers of religion who are members of combatant units at the time of their capture.211 Such ministers shall enjoy the status of chaplains as stipulated in Article 35 of the Third Geneva Convention.212 The chaplains are members of the armed forces with a spiritual role.213 207 Final Record, Committee II, Vol. II-A, pp. 332–333; Commentary Article 37 of the Third Geneva Convention, p. 235. 208 Commentary Article 8 of Protocol I, p. 128. 209 Final Record, Committee II, Vol. II-A, pp. 260–261. 210 Article 36 of the Third Geneva Convention reads: “Prisoners of war who are ministers of religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community. For this purpose, they shall receive the same treatment as the chaplains retained by the Detaining Power. They shall not be obliged to do any other work.” 211 Commentary Article 36 of the Third Geneva Convention, p. 233. 212 Final Record, Committee II, Vol. II-A, p. 332; Final Record, Report of Committee II, Vol. II-A, p. 565; Commentary Article 36 of the Third Geneva Convention, p. 233. 213 Article 53 of the Lieber Code; Article 13 of the 1880 Laws of War on Land; Article 9 of the 1906 Geneva Convention; Article 9 of the 1929 Geneva Convention; Articles 15, 24, 26, and 27 of the First Geneva Convention; Articles 18 and 37 of the Second Geneva Convention and 4, 33, and 35 of the Third Geneva Convention; Article 63 of the Fourth Geneva Convention; Article 8, 43, and 85 of Protocol I and Article 164 of the San Remo Manual. Several other Articles mention the chaplains in a less direct way. Articles 6 and 7 common of the First and Second Geneva Conventions protect the rights of chaplains

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4.3 Personnel Supporting the Civilians 4.3.1 Personnel Assisting the Internees Internees are “protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them” 214 and “persons deprived of their liberty for reasons related to the armed conflict.”215 A number of personnel give spiritual assistance to the internees. They include the ministers of religion or qualified laymen supporting the internees, subject to the approval of the Detaining Power and of the local religious authorities of the same faith.216 It was logical to use the reasoning applied in the case of prisoners of war to that of civilian internees. The ICRC did so in the memorandum which it addressed to all of the belligerent Powers on 14 July 1943,217 and its request was well-received. When the ICRC prepared a draft Convention for the protection of civilians, it convened in Geneva an expert commission composed of representatives of several charitable organisations.218 The Commission helped to prepare a draft Article 93 of the Fourth Geneva Convention to take this possibility into account. Such personnel benefit from privileges. Ministers of religion who are interned shall be allowed to minister freely to the members of their religious community. In addition, they shall be provided with the necessary facilities to move from one detention place to another and shall be authorised to visit

214 215 216 217 218

mentioned in these conventions. Article 88 of the 1929 Convention on prisoners of war and Article 9/9/9/10 common mention the initiative right that the ICRC or any other impartial humanitarian organisation may undertake for the protection and relief of chaplains. Article 10/10/10/11 common to the Geneva Conventions provides that chaplains can benefit by the activities of a Protecting Power. Article 11 of the First Geneva Convention states that the Protecting Powers may propose to the Parties to the conflict a meeting of the authorities responsible for the chaplains. Article 47 of the First Geneva Convention and 48 of the Second Geneva Convention state that the High Contracting Parties should disseminate the text of the present Convention to the chaplains. Article 68 of the Fourth Geneva Convention. Para. 1 of Article 5 of Protocol II. Articles 93 and 126 of the Fourth Geneva Convention. Report of the ICRC on its activities during the Second World War, Vol. I, p. 275. The expert commission included: the World’s Young Women’s Christian Association, World’s Alliance of Young Men’s Christian Associations, Caritas Internationalis, World Jewish Congress, World Council of Churches, World’s Student Christian Federation, Pax Romana, Catholic Relief, and War Relief of National Catholic Welfare Conference.

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all internees who are in the hospital. Finally, they shall be at liberty to correspond on matters concerning their ministry with the religious authorities in the country of detention and with the international religious organisations of their faith.219 These privileges derive from the fact that civilians accused of offences and detained in the occupied country shall have the right to receive spiritual assistance.220 Internees who are in the national territory of the Detaining Power have a similar right.221 4.3.2 Personnel Supporting the Civilians in General Personnel supporting civilians also include the ministers of religion who support civilians in general and are not detained.222 The Geneva Conventions provide that civilians in the territory of a party to the conflict shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith.223 Therefore, ministers of religion can benefit from local agreements for their passage to besieged or encircled areas224 and can be permitted by the Occupying Power to give spiritual assistance to the members of their religious communities.225 The personnel supporting the civilians also include those from National Societies, from other voluntary aid societies, and from impartial international humanitarian organisations. Such personnel also include the religious personnel attached to civil defence organisations, as seen previously.226 In addition, Article 62 of Protocol I gives the possibility for civilians to perform tasks of civil defence in response to an appeal from, and under the control of, the competent authorities; this also includes religious assistance. Protocol II provides that religious personnel must be granted all available help for the performance of their duties, and that they may not be compelled to carry out tasks that are incompatible with their humanitarian mission. The use of the verb “to compel,” taken from Article 33 of the Third Geneva

219 220 221 222 223 224 225 226

Article 93 of the Fourth Geneva Convention. Article 76 of the Fourth Geneva Convention. Article 126 of the Fourth Geneva Convention. Articles 17, 38, 58, and 76 of the Fourth Geneva Convention; Articles 1, 8, 9, 15, and 18 of Protocol I; Articles 9 and 12 of Protocol II. Article 38 of the Fourth Geneva Convention. Article 17 of the Fourth Geneva Convention. Article 58 of the Fourth Geneva Convention. Articles 8 and 9 of Protocol I.

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Convention, refers to cases where medical and religious personnel have fallen into the hands of the adversary.227 Definitions of Chaplains, Ministers of Religion and Religious Personnel IHL treaties refer together to religious personnel, chaplains, ministers of religion, and laymen. In fact, the expressions “religious personnel,” “chaplains,” and “ministers of religion” are similar. There has not been a clear differentiation of these terms at the Diplomatic Conferences. For example, Draft Article 9 of Protocol II originally referred to “medical personnel and chaplains and other persons performing similar functions, whether military or civilian.”228 The final Article 9, however, provides that “medical and religious personnel shall be respected and protected.” There is, however, a slight difference between the expressions “ministers of religion” and “chaplains;” while both have a spiritual role, chaplains are members of the armed forces,229 while ministers of religion are only incorporated in fighting units and are, therefore, civilians. A number of States have argued at the Diplomatic Conferences that the term “chaplain” is a Christian term, while the term “ministers of religion” is broader and can be used to refer to all religions. At the 1949 Diplomatic Conference, the delegate from Turkey stated twice that he felt the term “chaplains” is specific to certain religions,230 and in particular, Christianity. For this reason, “ministers of religion” replaced the word “chaplains” in draft Article 17 of the Fourth Geneva Convention.231 During the discussion on draft Article 15 of Protocol I, Arab countries232 and the ICRC233 considered “chaplain” to be a Christian term, and the expression was replaced with “religious personnel.” In draft Article 24 of Protocol I, the delegates from Australia and Poland pointed out that the term 4.4

227 Commentary Article 33 of the Third Geneva Convention, p. 216; Commentary Article 18 of Protocol II, p. 1422. 228 ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 38. 229 For this reason, Article 9 of the 1906 Geneva Convention, 9 of the 1929 Geneva Convention and 24 of the First Geneva Convention use the term “chaplains attached to armies/the armed forces” and Article 4 of the First Geneva Convention and 5 of the Second Geneva Convention cite “chaplains of the armed forces of the Parties to the conflict.” 230 Final Record, Committee III, Vol. II-A, p. 679. 231 Final Record, Committee III, Vol. II-A, p. 700. 232 Ibid., CDDH/II/70 (Egypt, Iraq, Jordan, Lebanon, Kuwait, Libya, Mauritania, Saudi Arabia, Oman, Syrian Arab Republic, Tunisia, United Arab Emirates, Palestine Liberation Organisation), Vol. III, p. 73. 233 Official Records, CDDH/II/SR 15, Vol. XI, p. 139.

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“chaplains” applies only to the ministers of certain religions,234 and the term “religious personnel”235 was adopted instead. Similarly, a Canadian proposal was submitted to change the reference to “chaplains” in Article 5 of Protocol II to “ministers of their faith.”236 Germany then suggested “chaplains and other persons performing similar functions,”237 while the Holy See suggested “persons, such as chaplains, performing religious functions,”238 the phrase which was adopted. Notwithstanding the discussions at the Diplomatic Conference, the term “chaplains” should not be understood to refer only to Christian religious personnel. Even in Article 2 of the 1864 Geneva Convention, “chaplain” was not intended to refer only to Christians.239 For this reason, the text submitted by the Commission of delegates to the Paris Conference in 1867 mentioned “religious assistance” in its Article 2, instead of “chaplains.”240 It was also stated at the 1977 Diplomatic Conference that “chaplain,” which was used only by way of example, does not refer exclusively to Christian religious personnel.241 Articles 93 and 126 of the Fourth Geneva Convention also use the expressions “ministers of religion” or “qualified laymen” for the religious personnel supporting the internee civilians, as they do not belong to the camp. During the discussion of Article 93 at the Conference, the delegate from the United Kingdom made a distinction between ministers of religion who were prisoners 234 Ibid., CCDH/II/SR 7, Vol. XI, p. 50. 235 Two expressions were therefore involved: “chaplains and other persons exercising similar functions” and “religious personnel.” While defending the first expression, the delegate from the Holy See used the second in Committee, as “the religious personnel are mentioned with the medical personnel in a number of articles of the Geneva Conventions of 1949”: Ibid., CCDH/II/SR 7, Vol. XI, p. 50. 236 Ibid., CDDH/I/37, Vol. IV, p. 24. 237 Ibid., Vol. IV, CDDH/I/236, p. 26. 238 Ibid., Vol. IV, CDDH/I/247, p. 26; Commentary Article 5 of Protocol II, p. 1389, para. 4578. 239 “Le mot aumôniers également n’est pas heureux, attendu qu’il n’a point partout la même acception. Ainsi, dans les pays où, s’attachant à son sens étymologique, on ne l’applique qu’à des distributeurs d’aumônes ou de secours, on risque de se méprendre singulièrement sur l’intention du législateur . . . on doit comprendre ici, sous le nom d’aumôniers, toutes les personnes chargées de l’assistance religieuse des soldats, ecclésiastiques ou laïques, supérieurs ou inférieurs, quelle que soit le culte auquel elles appartiennent”: Gustave Moynier, Etudes sur la Convention de Genève pour l’amélioration du sort des militaires blessés dans les armées en campagne (1864 et 1868), Paris, 1870, p. 153. 240 Gustave Moynier, Etudes sur la Convention de Genève pour l’amélioration du sort des militaires blessés dans les armées en campagne (1864 et 1868), op. cit., pp. 109–110, 117, and 106. 241 Official Records, Vol. XII, CDDH/II/SR.75, p. 220; Commentary Article 8 of Protocol I, p. 127; Commentary Article 9 of Protocol II, p. 1421.

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of war and those who were interned for reasons affecting the security of the State; the situation of the latter group is different from the chaplains looking after prisoners of war. To conclude, a chaplain is attached to the armed forces of a party to the conflict, while ministers of religion, layman, or religious personnel are not. All, however, provide religious assistance to protected persons. 4.5 Mandate of the Religious Personnel Religious personnel provide for religious ministration to the sick and wounded, prisoners of war, and civilians.242 Such personnel are exclusively engaged in the work of their ministry.243 The question of the definition of a religion was not examined by the delegates at the Diplomatic Conferences. The term “religion” should therefore be understood in its traditional sense, excluding all kinds of philosophies. 5

Substitutes of the Protecting Powers

The Protecting Power is a neutral State, having been approved by the State parties to the conflict, which controls the application of the Geneva Conventions. Article 8/8/8/9 of the 1949 Geneva Conventions states that the duty of the Protecting Powers “is to safeguard the interests of the Parties to the conflict.” As such, the Protecting Powers have to ensure that the belligerents fulfil their humanitarian obligations.244 242 Articles 33 and 36 of the Third Geneva Convention. 243 Article 8 of Protocol I. 244 For more information on the Protecting Powers, see Hamidou Coulibaly, “Le rôle des Puissances protectrices au regard du droit diplomatique, du droit de Genève et du droit de La Haye,” dans Fritz Kalshoven et Yves Sandoz (eds.), Mise en oeuvre du droit international humanitaire, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1989, pp. 69–78; André Heckenroth, Les Puissances protectrices et l’application des Conventions de Genève, thèse, Aix, 1951; Louis Aureglia, et Paul De la Pradelle, “Organisation, fonctionnement et protection du contrôle de l’application des Conventions humanitaires en cas de conflits armés,” Annales de Droit international médical, No. 2, février 1958, pp. 47–69; François Bugnion, “Le droit humanitaire applicable aux conflits armés internationaux, Le problème du contrôle,” Annales d’études internationales, Vol. 8, 1977, pp. 29–61; William Franklin Mc Henry, Protection of Foreign Interests, A study in Diplomatic and Consular Practice, Washington, United States Government Printing Office, 1946; Antonino Janner, La Puissance protectrice en droit international, d’après les expériences faites par la Suisse pendant la seconde guerre mondiale, Verlag von Helbing und Lichtenhahn, Bale, 1948;

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The Protecting Powers are cited in more than 120 articles of the following IHL texts: the 1929 Convention on Prisoners of War,245 the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality,246 the draft Convention I adopted in Monaco in 1934,247

Georges Abi-Saab, “Les mécanismes de mise en œuvre selon les Conventions de Genève de 1949, Revue générale de droit international public, 1978, pp. 104–120 ; Georges Abi-Saab, “Le renforcement du système d’application des règles du droit humanitaire,” Revue de droit pénal militaire et de droit de la guerre, 1973, pp. 223–240; Philippe Cahier, Le droit diplomatique contemporain, Librairie Droz, Genève, 1964; Christian Dominicé et Jovica Patrnogic, “Les Protocoles additionnels aux Conventions de Genève et le système des Puissances protectrices,” Annales de droit international médical, juillet 1979, pp. 1–27; Christian Dominicé, “La mise en oeuvre du droit humanitaire,” dans Karel Vasak (ed.), Les dimensions internationales des droits de l’homme, UNESCO, Paris, 1978, pp. 507–529; David Forsythe, “Who Guards the Guardians? Third Parties and the Law of Armed Conflicts,” American Journal of International Law, Vol. 70, No. 1, January 1976, pp. 41–61; Erich Kussbach, “Le Protocole additionnel I et les Etats neutres,” Revue internationale de la croix-rouge, No. 620, septembre–octobre 1980, pp. 231–251; Howard Levie, “Prisoners of War and the Protecting Powers,” American Journal of International Law, Vol. 55, No. 2, April 1961, pp. 374–397; Howard Levie, The Code of International Armed Conflict, vol. 1, Oceana Publications, London/Rome/New York, 1986; Jovica Patrnogic, “Internationalisation du contrôle des Conventions humanitaires en cas de conflit armé,” Annales de droit international médical, No. 21, avril 1971, pp. 33–51; Jovica Patrnogic, “Implementation of the Geneva Conventions of 1949 and Additional Protocols of 1977,” in European Seminar on IHL, Polish Red Cross/ ICRC, Warsaw/Geneva, 1979, pp. 87–100; George A. B. Peirce, “Humanitarian Protection for the Victims of War: The System of Protecting Powers and the Role of the ICRC,” Military Law Review, Vol. 90, 1980, pp. 89–162; Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” Revue internationale de la croix-rouge, No. 407, novembre 1952, pp. 869–894; Marco Sassòli, “Mise en oeuvre du droit international humanitaire et du droit international des droits de l’homme: une comparaison,” Annuaire suisse de droit international, Vol. XLIII, 1987, pp. 24–61; Masayuki Takemoto, “The Scrutiny System under IHL—An Analysis of Recent Attempts to Reinforce the Role of Protecting Powers in Armed Conflicts,” Japanese Annual of International Law, Vol. 19, 1975, pp. 1–23. 245 Articles 31, 39, 42, 43, 44, 60, 62, 65, 66, 77, 86, and 87 of the 1929 Geneva Convention on the Prisoners of War. 246 Articles 4, 23, and 24 of the Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality who are on Territory Belonging to or Occupied by a Belligerent, Tokyo, 1934. 247 Articles 3 and 5 of the First Draft Convention adopted in Monaco (Sanitary cities and localities), 27 July 1934.

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the Four 1949 Geneva Conventions248 and Protocol I,249 the 1954 Convention for the Protection of Cultural Property and its Protocol II,250 and the San Remo Manual.251 The Protecting Powers are therefore only mentioned in provisions covering international armed conflicts. Substitutes of the Protecting Powers are mentioned in the 1949 Geneva Conventions,252 Protocol I,253 and the 1954 Convention for the Protection of Cultural Property.254 The substitute can be an NGO or an intergovernmental organisation. 5.1 Criteria for Appointment of a Substitute of the Protecting Power 5.1.1 There is No Protecting Power Actively in the Conflict The first criterion for the appointment of a substitute is that there is no Protecting Power active in the conflict. In these circumstances, there are three possibilities for a substitute, according to common Article 10/10/10/11 of the 1949 Geneva Conventions: The first possibility is the designation by the High Contracting Parties “at any time” of an “organisation which offers all guarantees of impartiality and efficacy” to fulfil the mission of the Protecting Power. The second possibility is that, when protected persons do not benefit from the activities of a Protecting Power or from an impartial and efficient organisation, the Detaining Power can “request a neutral State, or such an organisation, 248 Articles 8, 10, 11, 16, 23, and 48 of the First Geneva Convention;  Articles 8, 10, 11, 19, and 49 of the Second Geneva Convention;  Articles 8, 10, 11, 23, 56, 58, 62, 63, 65, 66, 68, 69, 71, 72, 73, 75, 77, 78, 79, 81, 96, 100, 101, 104, 105, 107, 120, 121, 122, 126, 128, and Annex II of the Third Geneva Convention;  Articles 9, 11, 12, 14, 23, 24, 30, 35, 39, 42, 43, 45, 49, 52, 55, 60, 61, 71, 72, 74, 75, 83, 96, 98, 101, 102, 104, 105, 108, 109, 111, 113, 123, 129, 131, 137, 143, 145, and Annex II of the Fourth Geneva Convention. 249 Articles 2, 5, 6, 11, 33, 45, 60, 70, 78, and 84 of Protocol I. 250 Chapter I, Articles 21 and 22, Regulations for the Execution of the Convention for the Protection of Cultural Property in Event of Armed Conflict, and Articles 2, 3, 4, 5, 6, 8, 9, 10, 11, and 17 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954. See also Articles 34, 35, and 36 of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999. 251 Article 103 of San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994. 252 Articles 10/10/10/11 common of the Four Geneva Conventions. 253 Articles 2 and 5 of Protocol I. 254 Article 9 of the Regulations of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.

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to undertake the functions performed . . . by a Protecting Power.”255 Several countries expressed reservations regarding this provision, mentioning that the substitute cannot be designated without the consent of the Power of Origin. This provision is applicable, not when the first Protecting Power ceases to act, but only when there is no other possible Protecting Power.256 Such a possibility could occur if all the neutral States successively designated by the Power of Origin have refused the mandate of the Protecting Power or if the Detaining Power will not agree with the designation of the neutral States. In practise, this provision would thus enter into force if the Power of Origin disappeared or lost sovereignty, such as occurred with Germany after its capitulation in the Second World War, or if it voluntarily abstained from designating a Protecting Power. In such cases, the Power could choose a substitute, including itself, without the approval of the Power of Origin, since the Power of Origin would no longer be able to consent or refuse. The third possibility, mentioned in paragraph 3 of Article 10/10/10/11, is that there is no Protecting Power or substitute, in which event “the Detaining Power shall request or shall accept . . . the offer of the services of a humanitarian organization, such as the ICRC, to assume the humanitarian functions performed by Protecting Powers.” Article 5 of Protocol I adds that “if a Protecting Power has not been designated or accepted from the beginning” of a conflict, the ICRC or any other impartial humanitarian organisation shall offer its good offices to the parties to the conflict to designate a Protecting Power. If the ICRC is not successful, the parties to the conflict shall accept an offer which may be made by the ICRC or by any other organisation that offers all guarantees of impartiality and efficacy to act as a substitute. Article 9 of the Regulations of the 1954 Convention for the Protection of Cultural Property states that “if a Party to the conflict does not benefit or ceases to benefit from the activities of a Protecting Power, a neutral State may be asked to undertake those functions of a Protecting Power.” While the Conference that drafted the 1954 Hague Cultural Convention decided to use the Protecting Powers of the 1949 Geneva Conventions, when it came to the question of substitutes for the Protecting Powers, this was the reaction: “Article 9 of the Regulations dealt with substitutes for Protecting Powers. Based on the [1949] Geneva Conventions, it had been thought that, where a country had no Protecting Power, a ‘substitute’ could be appointed to fulfil all the 255 Para. 2 of common Article 10/10/10/11 of the Geneva Conventions. 256 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., pp. 886–887.

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conditions of such a power. The Committee of Experts and the UNESCO General Conference had, however, judged that clause valueless and a large part of the text had been deleted.”257 5.1.2

The Substitute should be an Impartial and Efficient Organisation, a Humanitarian Organisation, or “Such an Organisation” As seen previously, under common Article 10/10/10/11, if no Protecting Power is appointed, there are two possibilities for a substitute: an “organisation which offers all guarantees of impartiality and efficacy,” “such an organisation,” or “a humanitarian organisation, such as the ICRC.” The Protocol refers only to the ICRC or any other organisation which offers all guarantees of impartiality and efficacy. The criteria for being an “impartial” organisation will be examined in the next section on “impartial humanitarian bodies.” Paragraph 3 of Article 10/10/10/11, which calls upon a humanitarian organisation, appears to assume that the organisation referred to in paragraph 1 of the present Article will not be a “humanitarian” organisation. This would be in accordance with the idea of using an international organisation, such as a subsidiary body of the United Nations.258 The criteria of effectiveness means that the organisation is able to fulfil all of the missions mentioned in the Geneva Conventions regarding the activity of the Protecting Powers;259 in particular, it has the financial and material resources, as well as resources in qualified staff, to do so.260 The conditions of effectiveness also depend upon the nature and localisation of the conflict. Its independence regarding the parties to the conflict, the authority which it has acquired in the world, and its experience are also factors.261 The organisation may be specially created, or it may be an organisation already existing. It may be specialised or not, official or private, international or national.262 The chances of an organisation’s success and its credibility are probably reduced if it does not enjoy the trust of the Power of Origin, and these will be 257 1954 Record, p. 217, para. 1100, cited in Howard S. Levie, The Code of International Armed Conflict, vol. 1, Oceana Publications, London/Rome/New York, 1986, p. 583. 258 Howard S. Levie, The Code of International Armed Conflict, op. cit., p. 582. 259 Christian Dominicé et Jovica Patrnogic, “Les Protocoles additionnels aux Conventions de Genève et le système des Puissances protectrices,” op. cit., p. 5. 260 Commentary Articles 10/10/10/11 common of the Geneva Conventions, p. 118. 261 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., p. 885. 262 Commentary Articles 10/10/10/11 common of the Geneva Conventions, pp. 119–120.

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virtually nil if the trust of the other party to the conflict is lacking. For these reasons, the ICRC declared that it would offer to act as a substitute only if it had the consent of the parties to the conflict. In fact, the consent significantly affects the weight of its interventions and the possibility of finding the necessary resources for both personnel and financial means.263 In paragraph 2 of Article 10/10/10/11 common, it is mentioned that “the Detaining Power shall request a neutral State, or such an organisation,” to undertake the functions performed by a Protecting Power. The phrase “or such an organisation” does not mean any organisation that offers all guarantees of impartiality and efficacy. It refers only to the organisation as being “provided for in the first paragraph above”; that is, it addresses an organisation appointed by previous agreement between the Contracting Parties and consequently accepted in advance by the Power of Origin.264 Paragraph 3 of Article 10/10/10/11 common states that “if protection cannot be arranged accordingly, the Detaining Power shall request or shall accept . . . the offer of the services of a humanitarian organization, such as the ICRC.” The criterion of being a humanitarian organisation will also be examined in the next section on “impartial humanitarian bodies.” The humanitarian organization acting as a substitute is no longer “undertaking the functions performed by a Protecting Power,” but only “humanitarian functions.” One can question which “humanitarian functions” the humanitarian organisation will assume. It should undertake at least the activities that directly and immediately bring care and assistance to the persons protected by the Conventions.265 Therefore, these functions mainly concern the transmission of information, camps visits, and the distribution of relief.266 The humanitarian organisation, unlike a Protecting Power or its substitute, does not act as an agent or official, but as a voluntary helper. This safeguards the independence of the organisation.267 The ICRC can be entrusted with this mission,268 which indicates that the activity of the ICRC cannot be entirely assimilated to one of the Protecting Powers, 263 Commentary Article 5 of Protocol I, p. 86, para. 216. 264 Commentary Articles 10/10/10/11 common of the Geneva Conventions, p. 122. See also Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., pp. 887–889. 265 Georges Abi-Saab, “Les mécanismes de mise en œuvre selon les Conventions de Genève de 1949,” op. cit., pp. 107–108. 266 Jean Pictet, “Le Comité international de la Croix-Rouge dans les nouvelles Conventions de Genève,” Revue internationale de la croix-rouge, No. 425, mai 1954, p. 363. 267 Commentary Articles 10/10/10/11 common of the Geneva Conventions, pp. 122–123. 268 For an analysis of the possibility for the ICRC to act as a substitute of the Protecting Powers and a definition of its “humanitarian tasks,” see François Bugnion, Le Comité inter-

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as the ICRC does not have this capacity.269 It should be noted as well that a humanitarian body offering its services should be able to provide sufficient guarantees of its ability to perform the duties in question and to fulfil them with impartiality. Moreover, the right to demand guarantees was granted to the Detaining Power as well as to the Power of Origin.270 The Detaining Power has to require the intervention of the humanitarian organisation. If, before doing so, it receives the spontaneous offers of the services of such an organisation, it should accept them. A Power that declines such an offer or that receives a refusal from the organisation should ask another institution to play the role of a substitute. The same is true if the first organisation has ceased its activity. On the other hand, the obligation to accept the offers of service is “subject to the provisions of this Article.” Therefore, the Power cannot refuse offers unless it has already requested and obtained the support of another humanitarian organisation, or if the organisation which proposed its support did not provide sufficient guarantees. Indeed, paragraph 4 of Article 10/10/10/11 common puts restrictions on the activities of the substitute; although selected by the Detaining Power, it “must act with a sense of responsibility” to the Power of Origin, and it must furnish assurances of its competence and impartiality (to whom these must be furnished, however, is not specified). The Power can still require and accept the simultaneous services of several humanitarian organisations.271 The criterion of being “humanitarian” has been widely supported by States at the Diplomatic Conferences. During the 1974–1977 Diplomatic Conference, several modifications to Article 5 of Protocol I were proposed. Romania proposed the following as a substitute: “a humanitarian organization, such as the ICRC, designated and accepted by those Parties, or where appropriate, designated by the United Nations Organization and recognized by the Parties.” The Soviet Union and two other States suggested “a humanitarian organization, offering every guarantee of impartiality and efficacy . . . provided the Parties to the conflict so agree.”272 Several Arab States proposed “an impartial humanitarian organization, such as the ICRC, appointed by one of the Parties and

269 270 271 272

national de la Croix-Rouge et la protection des victimes de la guerre, Comité international de la Croix-Rouge, Genève, 1994, pp. 1021–1041. Christian Dominicé et Jovica Patrnogic, “Les Protocoles additionnels aux Conventions de Genève et le système des Puissances protectrices,” op. cit., p. 6. Statement of the Chairman of the Special Committee of the Joint Committee, Final Record, Vol. II-B, p. 130. Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., pp. 889–890. Official Records, Vol. III, CCDH/I/70, p. 30.

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accepted by the other Party, or in the last instance, appointed by the Conference of the High Contracting Parties, in conformity with Article 7.”273 Spain suggested adding one paragraph stating that “if the ICRC deems it impossible to assume the functions of substitute, the Parties to the conflict shall, without any delay, accept as a substitute the Power international or humanitarian organization with which the Committee arranges for the discharge of the duties of Protecting Power.”274 The United States suggested that the ICRC ask each Party to provide it with a list of at least three impartial humanitarian organisations with the necessary capacity, and that the ICRC will seek the agreement of any substitute named on both lists.275 The Holy See added that the Sovereign Order of Malta would be one example of such an organisation because of its humanitarian tradition and its international legal personality.276 The Sovereign Order of Malta also stated that it would be ready to assume the functions of substitute where possible and would be glad to cooperate with the ICRC in appropriate circumstances;277 because the Order has international legal personality, its traditional task is to assist victims of armed conflicts, and it is inspired by the principles of neutrality and impartiality. In addition, the Order has been able to intervene rapidly and effectively in several recent conflicts. In particular, the Order carried out the function of substitute of the Protecting Power at the time of the Suez conflict of 1956.278 It should be noted that the possibility of having several different substitutes at the same time was envisaged by the Commentary on the Conventions.279 Neither the summary records of the Conference for the adoption of the 1977 Protocols nor the reports of the Committee reveal any strong opposition to the notion of a possible division of tasks.280 On the contrary, several speakers argued in its favour,281 and other proposed changes did not affect the draft in 273 Official Records, Vol. III, CCDH/I/75 (Algeria, Egypt, Yemen, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Qatar, Sudan, Oman, and the United Arab Emirates), p. 31. 274 Official Records, Vol. III, CCDH/I/77, p. 32. 275 Official Records, Vol. III, CCDH/I/205, p. 34. 276 Ibid., Vol. VIII, CDDH/I/SR.11, pp. 84–85. 277 Ibid., Vol. VIII, CDDH/I/SR.12, p. 91. 278 Ibid., Vol. VIII, CDDH/I/SR.27, pp. 269–270. 279 Commentary Article 2 of Protocol I, p. 62, para. 141; Commentary Article 10 common of the Geneva Conventions, pp. 134–135. 280 Even in the introduction of the amendment proposing deleting the words “all or part”: Official Records, Vol. III, CDDH/I/44, and Corr. 1, p. 11; Official Records, Vol. VIII, CDDH/I/ SR.11, p. 85, para. 49; Commentary Article 2 of Protocol I, pp. 62–63, para. 142. 281 Official Records, Vol. VIII, CDDH/I/SR.11, p. 84, paras. 41 and 46; CDDH/I/SR.18, p. 162, paras. 45 and 46.

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this respect. It must be concluded that it is possible to have a number of substitutes if this seems appropriate in a given situation.282 5.1.3 Agreement of the Parties According to the first paragraph of Article 10/10/10/11, “the High Contracting Parties may at any time agree to entrust” the duties of the Protecting Powers to a specific organisation. The text does not, however, mention the “Parties to the conflict,” but the “High Contracting Parties.” This does not mean that only an organisation designated by all of the High Contracting Parties can be considered. The Convention did not use here the expression “Parties to the conflict” because it considered the possibility of designating this organisation in times of peace or in times of war.283 Therefore, in peacetime, the High Contracting Parties may initiate an ad hoc agreement in the event of an armed conflict to entrust a special organisation with the role given by the Conventions to the Protecting Powers. Or, at the outset of hostilities, the parties to the conflict, in appointing their respective Protecting Powers, may agree to have recourse to a special organisation for the application of the Convention. The last possibility is that, in the course of the conflict, the Parties may agree to entrust to a special organisation a part of the functions exercised by the Protecting Powers during the conflict.284 Paragraph 2 of Article 10/10/10/11 specifies that “the Detaining Power shall request a neutral State, or such an organization” to undertake the functions of a Protecting Power. It has been interpreted that here, the substitute is appointed without the intervention of the Power of Origin of the protected persons.285 For this reason, Albania made the following reservations to Article 10/10/10/11: “The People’s Republic of Albania will not recognize a request by a Detaining Power to a humanitarian organization or to a neutral State to take the place of a Protecting Power, as being in order, unless the Power of which the protected persons are nationals has given its consent.”286 Similar reservations have been made by the Byelorussian Soviet Socialist Republic,287 the Bulgarian 282 Commentary Article 2 of Protocol I, p. 63, para. 143; Commentary Article 5 of Protocol I, p. 86, para. 219; Commentary Articles 10/10/10/11 common of the Geneva Conventions, pp. 123–124. 283 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., p. 884. 284 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., p. 884; Commentary Articles 10/10/10/11 common of the Geneva Conventions, pp. 119–120. 285 See for example Commentary Article 5 of Protocol I, p. 84, para. 209. 286 Final Record, Vol. I, p. 342. 287 Ibid., p. 343.

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People’s Republic,288 the Hungarian People’s Republic,289 Poland,290 Portugal,291 Rumanian People’s Republic,292 Czechoslovakia,293 Ukrainian Soviet Socialist Republic,294 Union of Soviet Socialist Republics,295 and the Federal People’s Republic of Yugoslavia.296 However, as seen previously, in these Articles, the words “or such an organisation” refer to an organisation appointed by previous agreement between the contracting parties and consequently accepted in advance by the Power of Origin.297 Paragraph 3 of Article 10/10/10/11 common of the four Geneva Conventions provides that the Detaining Power can request or accept the offer of services of a humanitarian organisation to assume the humanitarian functions of a Protecting Power. Here, appointment can take place without the agreement of the Power of Origin necessarily being required.298 Article 5 of Protocol I states that the exercise of its functions by a substitute is subject to the consent of the parties to the conflict. Paragraph 4 of Article 5 of Protocol I indicates in a stronger way the obligation to designate a substitute only with the formal agreement of the parties to the conflict (“the functioning of a substitute is subject to the consent of the Parties to the conflict”) as compared to Article 10/10/10/11 of the Geneva Conventions (the Detaining Power “shall request or shall accept” the offer of services of a humanitarian organisation). The academic literature therefore considered that Article 5 was not an improvement.299 During the vote on Article 5 at the 1977 Diplomatic Conference, the delegates from Syria and Canada regretted that it contained no mandatory provisions and that the designation and appointment of a substitute depended

288 289 290 291 292 293 294 295 296 297 298 299

Ibid., pp. 344–345. Ibid., p. 347. Ibid., p. 350. Ibid., p. 351. Ibid., pp. 351–352. Ibid., p. 353. Ibid., p. 354. Ibid., p. 355. Ibid., pp. 356–357. Commentary Articles 10/10/10/11 common of the Geneva Conventions, p. 122. Commentary Article 5 of Protocol I, p. 84, paras. 210–211. Jacques Freymond, Guerres, Révolution, Croix-Rouge, Réflexions sur le rôle du Comité international de la Croix-Rouge, Institut universitaire de hautes études internationales, Genève, 1976, pp. 123–124; Eric David, Principes de droit des conflits armés, Bruylant, Bruxelles, 1999, p. 488.

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upon the goodwill of the parties to the conflict.300 But the delegate from Italy understood to the contrary that, under Article 5, Protecting Powers or substitutes are clearly mandatory in all conflicts, and that their absence would constitute a violation by the parties to the conflict of their IHL obligations.301 The delegate from Mexico regretted that the approach embodied in Proposal I of the ICRC draft302 was rejected and that the functioning of the substitute was subject to the consent of the parties. He also regretted the refusal of a proposed paragraph 4b that was submitted to Committee I, according to which the United Nations would have been able to designate a body to perform the functions or substitute.303 Egypt stated that the Detaining Power is legally obliged to accept the offer of services of a humanitarian organisation once it is made.304 Japan also stated that each party to the conflict should be under an obligation to accept a Protecting Power, as mentioned in a proposal offered by Belgian, the Netherlands, and the United Kingdom.305 Greece made a proposal306 specifying that, if no Protecting Power is designated, the ICRC would automatically act as the substitute.307 Nigeria stated that, with regard to the mention “of any other impartial humanitarian organization to do likewise,” the important role that relevant regional organisations, like the Organisation of African Unity, can play should be welcomed.308 At the 1977 Diplomatic Conference, the delegations named the United Nations (in particular, UNHCR), the Organisation of African Unity, and the Order of Malta as an organisation offering all guarantees of impartiality and efficacy.309 The delegations from Bangladesh and Korea stated that the appointment of a substitute should be automatic and should

300 301 302 303 304 305 306 307 308 309

Official Records, Vol. VI, CCDH/SR.37, pp. 65–66. Ibid., p. 66. Official Records, CDDH/1. Ibid., p. 67. See Annex to the summary record of the thirty-seventh plenary meeting, Explanations of votes, in Official Records, Vol. VI, p. 77. Amendment CDDH/I/67 and Add.1, Official Records, Vol. VIII, CDDH/I/SR.12, p. 92. Official Records, CDDH/I/31. See Annex to the summary record of the thirty-seventh plenary meeting, Explanations of votes, in Official Records, Vol. VI, p. 78. Ibid., p. 80. The United Nations was mentioned several times with respect to this article, either as a designating authority for Protecting Powers or substitutes or to play the role of substitute itself. The Order of Malta stated that it was prepared to assume a mandate as a substitute (Official Records, Vol. VII, CDDH/SR.58, p. 317, paras. 185–187, and notification by the depositary of 2 May 1980).

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not depend upon the consent of the Parties.310 The Union of Soviet Socialist Republics said that the activities of any humanitarian organisation that might act as an intermediary would be of an extraordinary nature and that it was, therefore, inappropriate to lay down an obligatory provision.311 However, according to treaty law, the consent of the parties to the conflict is still compulsory. Discussions about the Definition of the Substitute of the Protecting Powers 5.2.1 Discussions at the Diplomatic Conferences on Additional Criteria for the Substitute There have been numerous discussions at the Diplomatic Conferences about the other criteria for the substitute of the Protecting Powers. These proposals included the need for the substitute to be independent, international, or neutral. However, none of these criteria were adopted. The United Kingdom proposed replacing in the original draft of Article 10/10/10/11 common the term of the substitute by “any neutral or independent organisation,” but this was not accepted.312 Most of the proposals concerned the necessity for the substitute to be “international.” At the 1949 Diplomatic Conferences, the delegate from Australia suggested a reference to “a recognized international body.”313 Through a draft resolution, the French delegation also suggested that “consideration be given as soon as possible to the advisability of setting up an international body” as a substitute.314 During the 1974–1977 Diplomatic Conference, Indonesia also suggested replacing “humanitarian” with “international” in draft Article 5 of Protocol I, stating that if one of the parties to the conflict refused to accept the proposed substitute, the United Nations could designate an international body with the agreement of the parties.315 Brazil similarly proposed to modify the text to state that the ICRC may nominate an international body capable of assuming the functions of a substitute.316 Indonesia stated that a reference should be made to “an international organization designated by the Secretary 5.2

310 311 312 313 314

Official Records, Vol. VIII, CDDH/I/SR.11, p. 82. Ibid., Vol. VIII, CDDH/I/SR.12, p. 94. See Annex No. 20, Final Record, Vol. III, p. 30. Final Record, Joint Committee, Vol. II-B, pp. 22–23. Final Record, Vol. I, p. 361; Annex No. 21, Final Record, Vol. III, pp. 30–31; Final Record, Joint Committee, Vol. II-B, pp. 27, 30, 34, 60–61, 69, 111–112, 118–119, 130, and 487. 315 Ibid., Vol. VIII, CDDH/I/SR.11, p. 81. 316 Ibid., Vol. III, CCDH/I/54, p. 26.

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General of the United Nations,” which could offer all guarantees of impartiality and efficacy.317 All of these proposals were rejected at the 1949 Diplomatic Conference318 and at the 1974–1977 Diplomatic Conference. This, of course, does not prevent the substitute from being an international NGO. 5.2.2 Subsequent Practise During the Diplomatic Conferences, several United Nations bodies have been mentioned as possible substitutes. However, the United Nations never acted as such, even if it played a more important role in the control of the application of the Geneva Conventions in creating various missions and bodies to investigate the Conventions’ violations.319 In actual practise, the Protecting Powers system has generally proven to be a failure. It was implemented in only three cases.320 Among the reasons for its failure were: fear that belligerents would have to recognise each other because of the appointment of Protecting Powers; desire not to sever diplomatic relations; and the unwillingness of the ICRC to step in and offer to take the role of substitute. When the 1974–1977 Conference opened, to the extent that it had not been the subject of reservations, the system was part of customary law,321 yet it was scarcely workable in any real situation.322 The possibility of appointing a substitute under Article 10/10/10/11 common of the four Geneva Conventions has never been used by an organisation other than the ICRC, which acted according to its initiative right.323 In this regard, it is worth mentioning that common Article 10/10/10/11 was drafted by the ICRC, 317 Ibid., Vol. VIII, CDDH/I/SR.18, p. 159. 318 Ibid., Joint Committee, Vol. II-B, pp. 29, 67–68, and 118. 319 See, for example, Resolution 2443 (XXIII) of the General Assembly of 19 September 1968, creating an investigation commission and Resolution 6 (XXV) of the Human Rights Commission of 4 March 1969, establishing a working group to investigate the violations of the Fourth Geneva Convention in the occupied Palestinian territories. See also Resolution A/38/79 of 15 December 1983 for the Special Committee to investigate Israeli Practises, and various resolutions of the Human Rights Commission. Georges Abi-Saab, “Les mécanismes de mise en œuvre selon les Conventions de Genève de 1949,” op. cit., pp. 115–116. 320 In 1956, during the Suez conflict between Egypt and France; with the U.K. in 1961 during the Goa affair; and, in 1971, during the Indo-Pakistani war—India soon withheld its consent to the Protecting Power’s intervention. 321 To the extent that it had not been the subject of reservations. 322 Antonio Cassese, “The Geneva Protocols of 1977 on the IHL of Armed Conflict and Customary International Law,” Pacific Basin Law Journal, Vol. 3, 1984, pp. 99–100. 323 Commentary Article 5 of Protocol I, p. 84, para. 207.

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which engaged in certain activities granted to the Protecting Power during the Second World War.324 5.3 Mandate of the Substitute of the Protecting Powers More than eighty provisions of the Conventions and Protocol I mention tasks of the Protecting Power in the following fields: visits to protected persons; need of their consent to certain extraordinary measures concerning protected persons; need for them to at least be informed about certain other measures; supervision of relief missions and evacuations; institution of hospital zones; reception of applications by protected persons; assistance to judicial proceedings against protected persons; transmission of information, documents, and relief goods; and the offering of good offices in many aspects. As seen previously, the tasks of the substitute focus mostly on humanitarian aspects in favour of protected persons. In fact, taking into account discussions at the Diplomatic Conferences and the texts of the treaties, the definition of a substitute of the Protecting Powers is similar to the “impartial humanitarian bodies.” 6

Impartial Humanitarian Bodies/Organisations

The terms “impartial humanitarian body” and “humanitarian organisation” are cited in several Articles of the 1949 Geneva Conventions325 and of the Protocol I.326 Humanitarian organisations are also mentioned in the 1996 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps,

324 Report of the ICRC on its activities during the Second World War (September 1, 1939–June 30, 1947), Vol. I, Part III, Chapter VII, pp. 353–767. 325 See common Articles 3 and 9/9/9/10 of the 1949 Geneva Conventions, as well as Articles 15, 59, 61, and 96 of the Fourth Geneva Convention. Article 96 of the Fourth Geneva Convention specifically refers to “humanitarian organizations that may visit the places of internment.” 326 See Articles 5, 9, 22, 32, 60, 74, and 81. Articles 9 and 22 of Protocol I refer to an “impartial international humanitarian organization,” adding the adjective “international,” Article 74 specifically refers to “the humanitarian organizations engaged in this task [the reunion of families dispersed].”

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and Other Devices,327 the 1994 San Remo Manual,328 and in a resolution of the International Law Association.329 Such terms are also used in numerous resolutions of international bodies. One of the first resolutions was adopted in 1969 at the XXIst International Conference of the Red Cross, where States were “requested to exercize their sovereign and other legal rights so as to facilitate the transit, admission, and distribution of relief supplies provided by impartial international humanitarian organizations for the benefit of civilian populations in disaster areas.”330 The UN General Assembly then indicated that this statement was also applicable in situations of armed conflict.331 Moreover, the Geneva Conventions and Protocol I refer to “an organisation which offers all guarantees of impartiality and efficacy” as substitute of a Protecting Power.332 Two other dispositions refer to relief actions of a humanitarian and impartial character.333 For the commentators of the Geneva Conventions, such relief actions may be undertaken by the ICRC or any other impartial humanitarian organisation.334 But other scholars believe that it is the action that should be

327 Article 12. 328 Article 103. 329 Resolution of 13 September 1989, mentioning that the relief offer of “an impartial humanitarian body, such as the ICRC,” cannot be considered as interference in the conflict: Annuaire de l’Institut de droit international, Vol. 63-II, 1990, Pédone, Paris, pp. 344–345. 330 Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, Resolution XXVI, XXIst International Conference of the Red Cross, Istanbul, 1969, in ICRC and IFRC, International Red Cross Handbook, twelve edition, ICRC, Geneva, 1983, p. 661. 331 Resolution 2675 (XXV) of the United Nations, Principle 8: “The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, as laid down in Resolution XXVI adopted by the twenty-first International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application.” 332 Articles 10/10/10/11 common of the 1949 Geneva Conventions and Article 5 of Protocol I. 333 Article 18 of Protocol II and Article 70 of Protocol I. 334 Commentary Article 18 of Protocol II, p. 1479, para. 4879; Commentary Article 70 of Protocol I, pp. 818–819, para. 2804.

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impartial, not the organisation taking it; therefore, actions of a political organisation can be covered by these dispositions.335 Therefore, such organisations are mentioned in provisions covering both international and non-international armed conflicts. Origin of the Reference to These Organisations in the Geneva Conventions and Additional Protocol I The insertion of a reference to impartial humanitarian organisations has been suggested several times during the elaboration of the Geneva Conventions and Protocols. For example, during the XVIIth International Conference of the Red Cross, the doctor des Cilleuls proposed in the “concours medical ” of 12 February 1949, some modifications to Article 24 of the Stockholm text, incorporating a reference to an “impartial humanitarian body.”336 During the 1947 Experts Conference, one delegation suggested that, to “facilitate conveyance of mail and other authorized articles sent to prisoners of war . . . the ICRC, or any other humanitarian organization approved by the belligerents concerned, shall be requested by the adverse parties signatory to the Convention, to procure the required means of transport.”337 The Commission also adopted a draft Article 29 in the Fourth Geneva Convention, which stated that “recognized neutral and international humanitarian organizations, such as the ICRC, shall have access to occupied countries” to check the level of subsistence and public health in the occupied country.338 It was the ICRC that pushed for the mention of such humanitarian organisations in the Geneva Conventions and Protocols. For example, it was the experience gained by the ICRC in establishing neutralised zones in various conflicts before 1949 that led the Diplomatic Conference to adopt Article 15 of the Fourth Geneva Convention, which reproduced a draft text submitted 6.1

335 Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 105. 336 He added the following to Article 24: “au cas où dès le début des hostilités, il n’y aurait pas eu accord préalable entre les parties au conflit, le nombre des médecins retenus ainsi que l’estimation des compétences requises en fonction des besoins, seront laissés à l’appréciation du Comité international de la Croix-Rouge ou d’un organisme humanitaire impartial, en plein accord avec la puissance à laquelle appartiennent ces médecins et ces prisonniers”: Hervé Lavergne, La protection et le respect du médecin au cours des hostilités, Pierre Moulin imprimeur, Lyon, 1954, p. 42. 337 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, International Red Cross Committee, Geneva, 1947, pp. 189–190. 338 Ibid., p. 291.

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by the ICRC.339 The ICRC also inserted a reference to impartial humanitarian bodies in several draft articles. For example, draft Articles 15, 61, and 96 of the Fourth Geneva Convention mentioned “impartial humanitarian organisations,” although this expression was never discussed by the delegates at the 1949 Diplomatic Conference, who voted for the drafts without comments. With regard to draft Article 59, the Working Party mentioned only that the National Societies were covered by this expression and that the original word “bodies” had been replaced by “organisations.”340 The draft Article 60 of Protocol I submitted by the ICRC to the 1977 Conference mentioned as well an “impartial humanitarian body,” modified in the final text to “organisation.”341 However, on several occasions, the insertion of a reference to humanitarian bodies was made during the Diplomatic Conferences, since the draft Articles presented to these Conferences did not mention such organisations.342 Other draft dispositions mentioned impartial humanitarian organisations, but this reference was subsequently deleted in the final text. For example, in draft Article 33 of Protocol I, the reference to “other impartial humanitarian organisations” that had initially been included in the report of the Working Group was deleted, since, according to one delegate, “division of effort means loss of efficiency.”343 In its first report, the Working Group of Committee II had provided that joint teams organised to search for the dead and wounded 339 340 341 342

Commentary Article 15 of the Fourth Geneva Convention, p. 129. Final Record, Committee III, Vol. II-A, p. 748 and Vol. II-B, p. 194. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 18. Draft Article 9 of Protocol I mentioned only “an organization of an international character, provided the said organization fulfils the requirements imposed on the government of a State which is not a party to the conflict under the terms of the aforesaid Article 27”: ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 6. Draft Article 22 of Protocol I did not contain any reference to such organisation: ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 9. Article 32, 74, and 81 of Protocol I were not contained in the draft Articles submitted by the ICRC to the 1974–1977 Diplomatic Conference, but were added by the Committee at the Conference. There was no mention of a humanitarian impartial body in the draft Article 3 of the 1949 Geneva Conventions. The Joint Committee chose a draft article elaborated by a Working Party set up at the Diplomatic Conference that mentioned this body: See Annexes A, B, D and E, Final Record, Joint Committee, Vol. II-B, pp. 124–126 and 34–35, 122. Then the United Kingdom delegate proposed: “provided that the other Party to the conflict is also prepared to do so, the High Contracting Party concerned shall accept, if offered, the services of an impartial humanitarian body, such as the ICRC”: Final Record, Joint Committee, Vol. II-B, p. 90. 343 Official Records, Vol. XI, CDDH/II/SR.34, p. 355, para. 37; Official Records, Vol. XI, CDDH/ II/SR.35, pp. 363–364, para. 3; Commentary Article 33 of Protocol I, p. 361, para. 1277.

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could be assisted by “personnel of international humanitarian organisations,”344 but this idea was later abandoned.345 However, as one delegate who proposed deleting the phrase stated: “The Parties could by mutual agreement decide that personnel of international humanitarian organizations might participate in the activities referred to” in the draft article.346 At the 1977 Conference, Germany suggested modifying draft Article 5 of Protocol II, which would have added that the parties to the conflict “shall facilitate visits to the persons referred to in paragraph 1 [persons whose liberty has been restricted by capture or arrest for reasons in relations to the armed conflict] by an impartial humanitarian body such as the ICRC,” but this proposal was not adopted.347 The draft of Article 70 of Protocol I submitted by the ICRC stated in its paragraph 4 that “the Parties to the conflict and any High Contracting Party may set as condition that the entry, transport, distribution, or passage of relief be executed under the supervision of a Protecting Power or of an impartial humanitarian body.”348 This last expression was finally deleted.349 The draft of Article 18 of Protocol II submitted by the ICRC stated in its paragraph 4 that “the Parties to the conflict and any High Contracting Party may set as condition that the entry, transport, distribution, or passage of relief be executed under the supervision of an impartial humanitarian body,” but this text was revised.350 The Holy See also wanted to insert in Protocol II a provision providing that “it is the right of families to know the fate of their relatives that will prompt the parties to establish information bureaus in order to gather information and transmit it, if necessary, through the intermediary of [the] ICRC or some other impartial humanitarian organ.” However, a draft Article 34 containing a similar provision was deleted by consensus at the Diplomatic Conference.351 During the discussion on Article 59 of the Fourth Geneva Convention at the Diplomatic Conference, the delegate from the United Kingdom wished to suppress the reference to “impartial humanitarian bodies,” as these organisations were not offering the same guarantees of impartiality as the ICRC. But 344 345 346 347 348 349 350 351

Official Records, Vol. XIII, CDDH/221/Rev.1, p. 108. Commentary Article 33 of Protocol I, p. 363, para. 1289. Official Records, Vol. XI, CDDH/II/SR.35, p. 367. Official Records, Vol. IV, CDDH/I/236, p. 25. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 21. Official Records, Vol. XII, CDDH/II/SR.87, pp. 339–343. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 43. Official Records, Vol. VII, CDDH/SR.53, pp. 151 and 158.

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the delegate of the Holy See did not agree. The question was referred to the Drafting Committee.352 The Danish Delegation also proposed that the words “and other National Red Cross Societies” be inserted after “the ICRC.” But the Working Party rejected the proposal; they considered it redundant because the National Societies were already covered by the expression “impartial humanitarian bodies.”353 It was reminded that such a body should carry out these duties efficiently and without bias.354 During the discussion of Article 10/10/10/11, the delegation from the Soviet Union submitted a proposal that would delete the words “humanitarian organisation” and replace them with “a relief society.” The French delegation did not agree, stating that a relief society is an association of persons who agree to help each other (i.e. a lifeboat society). A relief society, the French asserted, is different from a humanitarian organisation, which is set up to give all kinds of assistance or relief to third parties. The ICRC also stated that it was not a relief society and that the three Conventions mentioned “relief societies,” all of which were National Societies.355 Criteria to be Fulfiled by the “Impartial Humanitarian Organisations” In various treaty provisions, these “humanitarian organisations/bodies” are compared to the ICRC.356 The ICRC was mentioned in several articles as an example of what was meant by a humanitarian and impartial organisation.357 The commentaries on Articles 9/9/9/10 common to the Geneva Conventions 6.2

352 353 354 355 356

Final Record, Committee III, Vol. II-A, p. 667. Ibid., Committee III, Vol. II-A, p. 748. Ibid., Committee III, Vol. II-A, p. 832. Final Record, Plenary Meeting, Vol. II-B, pp. 347–350. Article 3 common and Article 59 of the Fourth Geneva Convention refer to “impartial humanitarian body/impartial humanitarian organizations, such as the ICRC.” Article 9/9/9/10 common to the Geneva Conventions, as well as Articles 61 and 96 of the Fourth Geneva Convention, mention “the ICRC or any other impartial humanitarian organization/and of other humanitarian organizations.” Article 5 of Protocol I uses a slightly different terminology, stating that “the ICRC, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict” (the term “any other” here implying that the ICRC is such an impartial humanitarian organisation). 357 Commentary Article 3 of the First Geneva Convention, p. 59; Commentary Article 59 of the Fourth Geneva Convention, p. 321; Commentary Article 9 of the First Geneva Convention, p. 108.

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and Article 61 of the Fourth Geneva Convention also mention the neutrality of the ICRC.358 According to the commentators of the Geneva Convention, the words “impartial humanitarian organisation” are general enough to cover “any institutions or organizations capable of acting effectively and worthy of trust,”359 including the National Societies and other organisations that possessed the necessary qualified staff and material resources.360 The delegation from Australia also stated at the 1974–1977 Diplomatic Conference that the reference to these organisations in Articles 9 and 22 of Protocol I applied to Red Cross organisations.361 These events provide indications about the organisations concerned, which should fulfil certain criteria. 6.2.1 The “International” Criterion The criterion of being an international organisation derives mostly from provisions in Protocol I. Article 9 of Protocol I refers to “impartial international humanitarian organizations.” The 1973 draft of this text referred to organisations with an international character in a broader sense.362 Articles 22 and 32 of Protocol I also refer to international impartial humanitarian organisations. The wording of Article 32 was preferred to the original mention of “international organisations” and was adopted without giving rise to discussion.363 Also, at the 1949 Diplomatic Conference, the delegate from the ICRC used the term “impartial international bodies, such as the ICRC” to refer to draft Article 3 common of the Geneva Conventions.364 The delegate from Mexico also stated that “the role of the Protecting Power should devolve on some international body, such as the ICRC.”365 The criteria of being international might imply that there was an intention to limit these bodies to intergovernmental organisations, but according to the commentary on Article 32 of Protocol I,366 the reference also covers NGOs.

358 Commentary Article 61 of the Fourth Geneva Convention, p. 326; Commentary Article 9 of the First Geneva Convention, p. 108. 359 Commentary Article 59 of the Fourth Geneva Convention, p. 321. 360 Commentary Article 61 of the Fourth Geneva Convention, p. 326. 361 CDDH/SR.43, Annex to the summary record of the forty-third plenary meeting, Explanations of vote, Official Records, Vol. VI, p. 262. 362 Official Records, Vol. XII, CDD/II/SR.75, p. 224, para. 42. 363 Official Records, Vol. XI, CDDH/II/SR.35, p. 365, para. 13. 364 Final Record, Plenary Meeting, Vol. II-B, p. 337. 365 Final Record, Joint Committee, Vol. II-B, p. 11. 366 Commentary Article 32 of Protocol I, p. 345, paras. 1207–1209.

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These international organisations can also be either governmental or nongovernmental, according to the commentary on Article 9 of Protocol I. With such kinds of organisation, the consent of the government of the country where the organisation is established is irrelevant, as it is an international organisation.367 It should be understood that being international is optional, not required, as this criteria is not widely mentioned in the Conventions and Protocols. Moreover, as the United States delegate at the 1949 Conference remarked, it would have been regrettable if welfare organisations of a non-international character had been prevented from carrying out their activities in time of war.368 The ICRC is not itself international, so far as its membership is concerned.369 6.2.2 The Criterion of Being “Humanitarian” The Principle of Humanity The principle of humanity is one of the seven principles that guide the Movement. “The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours—in its international and national capacity—to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation, and lasting peace amongst all peoples.” Further, the Red Cross “makes no discrimination as to nationality, race, religious beliefs, class, or political opinions. It endeavours only to relieve suffering, giving priority to the most urgent cases of distress.”370 This principle has been defined by several authoritative scholars. Hans Haug stated that “the behaviour of man towards man called for by humanity is respect and love, from which the will is derived to recognise the fellowman as a unique personality, to be good to him and to do him good, to spare him and to protect him, to help him when he needs help.”371 He added that it included “aid to the wounded, sick, shipwrecked, prisoners, the homeless, the famished, and fugitives,” as well as “the prevention of suffering: health education, 367 368 369 370

Commentary Article 9 of Protocol I, p. 143. Final Record, Vol. II-B, p. 60. Commentary Article 9 of the First Geneva Convention, p. 108. Principle also cited by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement, 27 June 1986, Merits, ICJ Reports 1986, p. 125, para. 242. 371 Hans Haug, “Humanity for All: The International Red Cross and Red Crescent Movement,” op. cit., p. 448.

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promotion of hygiene, vaccination campaigns, improvement of nutrition, living conditions, etc.”372 Jean Pictet also specified that human treatment concerns the minimum devoted to the individual to allow him or her a suitable life.373 For him, the humanity principle is comprised of three elements:374 preventing and alleviating suffering (including moral and physical pain), protecting life and health, and ensuring respect for the human being, respect for his or her life, freedom, happiness, i.e. all the aspects of his or her existence.375 Other scholars define the principle of humanity in wider terms.376 The International Court of Justice, in the Nicaragua case, stated that the provision of “humanitarian assistance” must be limited to the purposes hallowed in the practise of the Red Cross; namely, they are “to prevent and alleviate human suffering” and “to protect life and health and to ensure respect for the human being.”377 Here, the Court confirmed the customary character of the principle of humanity and considered that the fundamental principles of the Red Cross had to be respected with regard to any kind of humanitarian assistance, whether provided by the Red Cross, the United Nations, States, or 372 Ibid., pp. 451–452. 373 Jean Pictet, Développement et principes du droit international humanitaire, Cours donné en juillet 1982 à l’Université de Strasbourg dans le cadre de la Session d’enseignement organisée par l’Institut International des Droits de l’Homme, Institut Henry Dunant/Pédone, Genève/ Paris, 1983, p. 77. 374 According to Resolution I of the XXIII International Conference of the Red Cross of 1977. 375 Jean Pictet, “Commentaire des principes fondamentaux de la Croix-Rouge (I),” Revue internationale de la croix-rouge, No. 717, mai-juin 1979, pp. 144–147 and Jean Pictet, “Commentaire des principes fondamentaux de la Croix-Rouge (II),” Revue internationale de la croix-rouge, No. 718, juillet–août 1979, pp. 185–186; Jean Pictet, “Les principes fondamentaux de la Croix-Rouge et la paix—Signification des principes pour l’esprit de paix,” Revue internationale de la croix-rouge, No. 746, mars–avril 1984, pp. 71–72; Walter Schatzel, “Humanité et droit des gens,” Revue internationale de la croix-rouge, No. 479, novembre 1958, pp. 581–593; Jean Pictet, “Les principes de la Croix-Rouge (I),” Revue internationale de la croix-rouge, No. 440, août 1955, pp. 483–513. 376 See Jacques Maurant, stating that “l’humanité de la Croix-Rouge lui impose aussi de faire respecter la personne humaine et par son action quotidienne, en temps de guerre comme en temps de paix, de favoriser la compréhension mutuelle, l’amitié, la coopération et une paix durable entre les peuples.” Jacques Meurant, “Principes fondamentaux de la CroixRouge et humanitarisme moderne,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 896. 377 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement of 27 June 1986, Merits, ICJ Reports 1986, p. 125, para. 243.

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other organisations. Secondly, the assistance’s purpose must be truly humanitarian; it must protect human beings from the suffering caused by war.378 The Criterion of Being “Humanitarian” One author stated that all actions resulting from the initiative right of an impartial humanitarian body are humanitarian by nature.379 Basically, the term “humanitarian” aims at the respect of the life of the human being and the protection of his/her health and dignity.380 The humanitarian character of the action is fulfiled once it is clear that it is aimed at bringing relief to victims.381 For Jean-Luc Blondel, an activity is humanitarian if it provides the following services to victims: nutritional and material support (shelters, clothes, food), medical support, support against arbitrary detention, visits and interviews, spiritual support, communication with families, search for missing persons, family reunification, or giving cultural material (such as books).382 In the Nicaragua case, the International Court of Justice identified as humanitarian assistance actions such as providing clothes, food, and medicine, but excluded the provision of weapons and ammunition. According to the Fundamental Principles of the Red Cross, however, it is not only what is distributed that is important, but the way it is distributed. For example, the provision of food and medicine to a specified armed group and not to the others is forbidden to the members of the Movement (see section below on impartiality).383 The Commentary on common Article 9/9/9/10 of the Geneva Conventions states that, for an organisation to be humanitarian, its activities must be “concerned with the condition of man, considered solely as a human being without 378 Vincent Chetail, “The Contribution of the International Court of Justice to IHL,” International Review of the Red Cross, No. 850, June 2003, p. 265. 379 Françoise Bouchet-Saulnier, Droit d’initiative humanitaire, Médecins sans frontières, Paris, 1992, p. 12. 380 Jean-Luc Blondel, “Signification du mot “humanitaire” au vu des Principes fondamentaux de la Croix-Rouge et du Croissant-Rouge,” Revue internationale de la croix-rouge, No. 780, novembre–décembre 1989, p. 537. 381 Commentary Article 70 of Protocol I, pp. 817–818, para. 2798. 382 Jean-Luc Blondel, “Signification du mot “humanitaire” au vu des Principes fondamentaux de la Croix-Rouge et du Croissant-Rouge,” op. cit., pp. 535–536. 383 Jean-Luc Blondel, “Signification du mot ‘humanitaire’ au vu des Principes fondamentaux de la Croix-Rouge et du Croissant-Rouge,” op. cit., p. 536; Marion Harroff-Tavel, “Neutralité et impartialité : de l’importance et de la difficulté, pour le Mouvement international de la Croix-Rouge et du Croissant-Rouge, d’être guidé par ces principes,” Revue internationale de la croix-rouge, No. 780, novembre–décembre 1989, p. 563.

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regard to the value which he represents as a military, political, professional, or other unit.”384 The Commentary adds that a humanitarian activity is “concerned with human beings as such, and must not be affected by any political or military consideration.”385 The organisation should follow only humanitarian aims.386 Article 81 of Protocol I specifies in this regard that “the other humanitarian organizations referred to in the Conventions and this Protocol . . . perform their humanitarian activities in accordance with the provisions of the Conventions and this Protocol.” In conclusion, an organisation is “humanitarian” when its main activity concerns preventing and alleviating human suffering, or protecting life and health, or ensuring respect for the human being. 6.2.3 The Criterion of Being “Impartial” There has been no definition of this term at the Diplomatic Conferences. It has been said that an organisation can be described as being “impartial” when it “fulfils the qualifications of being genuinely impartial.”387 The principle of impartiality is defined as follows by the Movement: “The Movement makes no discrimination as to nationality, race, religious beliefs, class, or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.” The principle of impartiality is comprised, therefore, of three elements: the recognition of equality of all people, the duty of equal treatment, and due proportion or appropriate relief without favour or prejudice.388 In fact, to be impartial means to defend the interests of everyone in the same way.389 This implies that such an organisation observes the principle of non-discrimination in its activities.390 The concept of impartiality refers to the agent of the action; it is a moral quality which must be present in the individual or institution called upon to act for the benefit of those who are suffering. Impartiality presupposes the existence of recognised rules that must be applied dispassionately and without prejudice.391 The fact that the organisation 384 385 386 387 388

Commentary Article 9 of the First Geneva Convention, p. 108. Ibid., p. 109. Commentary Article 9 of Protocol I, p. 143. Official Records, Vol. VI, CDDH/II/SR.37, p. 68, para. 22. Hans Haug, “Humanity for All: The International Red Cross and Red Crescent Movement.” op. cit., p. 455. 389 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., p. 885. 390 Commentary Article 9 of Protocol I, p. 143. 391 Commentary Article 70 of Protocol I, p. 818, para. 2801.

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can be designated only by agreement between the parties is one of the guarantees insuring the impartiality of the organisation.392 The impartial character of the action may be assumed on the basis of fulfiling the obligation to conduct the action “without any adverse distinction.”393 The requirement of impartiality applies both to the acceptance of a relief action and to its conduct.394 The organisation should not give undue advantage to one side in a relief action, although relief given to only one side does not necessarily mean that the action is partial; much will depend upon the circumstances.395 In the Nicaragua case, the International Court of Justice observed that the provision of strictly humanitarian assistance should be conformed to the principle of impartiality. “An essential feature of truly humanitarian aid is that it is given without discrimination of any kind. In the view of the Court, if the provision of humanitarian assistance is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practise of the Red Cross, namely to prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being; it must also, and above all, be given without discrimination to all in need.”396 This principle is also part of international customary law.397 Other scholars have recognised this principle as a principle with a jus cogens character.398 However, for Fritz Kalshoven, the principle of impartiality does not mean that an organisation (such as a National Society) should help all parties in 392 Frédéric Siordet, “Les Conventions de Genève de 1949: Le problème du contrôle,” op. cit., p. 885. 393 Commentary Article 70 of Protocol I, p. 818, para. 2799. 394 Michael Bothe, New Rules for Victims of Armed Conflicts, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 435. 395 Michael Meyer, “Humanitarian Action: A Delicate Balancing Act,” Associations transnationales, February 1988, p. 64. 396 International Court of Justice, Case concerning military and paramilitary activities in and against Nicaragua, Merits, Judgement, 27 June 1986, ICJ Reports 1986, p. 115. 397 See also the resolution of the United Nations General Assembly A/RES/43/131 entitled Humanitarian assistance to victims of natural disasters and similar emergency situations (8 December 1988) and the resolution on the Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States (13 September, 1989) of the Institute of International Law, which reaffirm this principle. 398 See, for example, Igor P. Blishchenko, “Les principes du droit international humanitaire,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 291.

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an international armed conflict, for two reasons. First, the National Societies, which are impartial (according to the principles of the Red Cross), have been traditionally incorporated into the medical services of a party to the conflict and therefore have given support mainly to one camp. One can conclude that unilateral aid is not in conflict with the principle of impartiality. Secondly, the principle of impartiality is applicable only when the organisation has access to all of the territory; it depends upon the consent of the parties controlling the territory. However, such an organisation should still respect the principle of neutrality. For Kalshoven, the Court went too far in the Nicaragua case in specifying that the organisation give its support to all parties.399 In fact, impartiality does not necessarily mean mathematical equality. It means that the rescuer with only ten dressings to distribute to a hundred wounded “must not allow his choice to be dictated by prejudice or by considerations regarding the person of those to whom he gives or refuses assistance.” The condition of impartiality is fulfiled if “he gives the dressings to the first ten wounded he is able to reach, irrespective of who they are, or, when he can reach any of them, if he is guided in his choice by the apparent gravity of the wounds, making no distinction between friends, allies, and enemies.” The distribution of relief should be entirely based upon the actual needs.400 The duty of non-abstention (part of the principle of neutrality) can be respected at all times, but impartiality can vary according to the circumstances; one party can refuse assistance, and the ICRC or another impartial humanitarian body can assist only one other party.401 Therefore, contrary to the claims of some parties to a conflict, impartiality does not mean that all sides must receive the same amount of assistance. Instead, assistance is to be rendered based only upon need.402 The standard by which compliance with the principles of neutrality 399 Frits Kalshoven, “Impartialité et neutralité dans le droit et la pratique humanitaires,” Revue internationale de la croix-rouge, No. 780, novembre–décembre 1989, pp. 546–550. 400 Commentary Article 9 of the First Geneva Convention, p. 109. 401 Maurice Torrelli, “La neutralité,” Annales de droit international médical, No. 35, mai 1991, p. 50. 402 Marc Weller, “The Relativity of Humanitarian Neutrality and Impartiality”, Paper presented at the American Society of International Law 1997 Annual Conference, Washington D.C., 3 June 2000, The Journal of Humanitarian Assistance, available at www.jha.ac, p. 4; Marion Harroff-Tavel, “Neutrality and Impartiality, The Importance of these Principles to the International Red Cross and Red Crescent Movement, and the Difficulties Involved in Applying them,” International Review of the Red Cross, No. 273, November–December 1989, p. 537; Jacques Moreillon, “Du bon usage de quelques Principes fondamentaux de la Croix-Rouge,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 918.

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and impartiality is measured is furnished by the emergency that triggered the action.403 Jean Pictet distinguishes three notions in the principle of impartiality as it was defined in 1965: non-discrimination, proportionality, and impartiality itself. Non-discrimination is the absence of any objective discrimination or, in other words, the non-application of distinctions of unfavourable nature to persons because they belong to a given category (race, political party, religious belief, etc.). It implies a choice (contrary to neutrality, which implies that there is no choice but abstention to act).404 The concept of proportionality implies that any person needing assistance will receive it according to his or her needs, or that relief should be provided according to the most urgent necessity. Furthermore, impartiality requires that no subjective distinction be made among those who suffer; all have the right to be supported, whether innocent victims or those responsible for war crimes.405 For Jean Pictet, impartiality is a quality of the agent acting in favour of victims.406 In conclusion, an organisation is “impartial” if it does not discriminate in its relief activities. The duty of equal treatment is, however, based upon appropriate relief, i.e. upon actual needs. The question of how to establish the humanitarian and impartial character of an organisation is a difficult one in practise. One can think about the possibility of granting to the organisations filling these conditions a form of international recognition that would attest to their strictly humanitarian and impartial character. One can also think of handing over a kind of residency permit (carte de légitimation) with an official nature to the agents of the humanitarian organisations, for the purpose of showing their total impartiality

403 Marc Weller, The Relativity of Humanitarian Neutrality and Impartiality, p. 7. 404 Jean Pictet, “Commentaire des principes fondamentaux de la Croix-Rouge (II),” Revue internationale de la croix-rouge, No. 718, juillet–août 1979, pp. 196–197; Jean Pictet, “Les principes fondamentaux de la Croix-Rouge et la paix—Signification des principes pour l’esprit de paix,” Revue internationale de la croix-rouge, No. 746, mars–avril 1984, pp. 79–80; Jean Pictet, “Commentaire des principes fondamentaux de la Croix-Rouge (III),” Revue internationale de la croix-rouge, No. 719, septembre–octobre 1979, pp. 257–258; Jean Pictet, “Les principes fondamentaux de la Croix-Rouge et la paix—Signification des principes pour l’esprit de paix,” Revue internationale de la croix-rouge, No. 746, mars–avril 1984, pp. 82–84; Jean Pictet, “Les principes de la Croix-Rouge (III),” Revue internationale de la croix-rouge, No. 442, octobre 1955, pp. 633–640. 405 Jean Pictet, “Les principes fondamentaux de la Croix-Rouge et la paix,” op. cit., p. 67. 406 Jean Pictet, “Commentaire des principes fondamentaux de la Croix-Rouge (IV),” Revue internationale de la croix-rouge, No. 720, novembre–décembre 1979, p. 307.

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and giving guarantees in this respect.407 These solutions are not really practicable, however, and, until now, no system has been put into place to achieve this purpose. 6.2.4 The Criterion of Being “Neutral:” A Necessity? Several scholars argue that the principles of impartiality and neutrality are interrelated.408 Neutrality is the necessary complement to the concept of impartiality, as this principle requires an organisation’s non-participation in hostilities and implies the refusal of adopting any ideology.409 A neutral organisation is therefore in a position to help individuals in proportion to their suffering, without a secondary purpose and without discrimination.410 Other scholars use the Protecting Powers criteria as a reference, since “an impartial and effective organisation” can act as a substitute for the Protecting Power. Therefore, the characteristics of such an organisation should be the same as those of the Protecting Power, i.e. a “neutral State” or an “other State not a Party to the conflict.”411 This means that the organisation should be a neutral one. This criterion of neutrality is confirmed by the requirement of the acceptance of the Protecting Power by the parties to the conflict.412 The tasks of the Protecting Powers and/or their substitutes also confer upon them the role of intermediary between the belligerents. The organisation should thus be accepted as neutral.413 Moreover, the ICRC is expressly mentioned as an 407 Christian Dominicé, “La neutralité et l’assistance humanitaire,” op. cit., p. 125. 408 Henri Meyrowitz, Le principe de l’égalité des belligérants devant le droit de la guerre, Pédone, Paris, 1970, p. 392; Max Huber, “Croix-Rouge et neutralité,” Genève, 1936, p. 1 (extracted from the International Review of the Red Cross, No. 209, May 1936); Christophe Swinarski, “La notion d’un organisme neutre et le droit international,” dans Christophe Swinarski (ed.), Studies and Essays on IHL and Red Cross Principles, in Honour of Jean Pictet, op. cit., p. 823; Dietrich Schindler, “Aspects contemporains de la neutralité,” RCADI, Vol. 121, 1967, p. 229; Jacques Meurant, “Principes fondamentaux de la Croix-Rouge et humanitarisme moderne,” op. cit., p. 900. 409 Frits Kalshoven, “Impartialité et neutralité dans le droit et la pratique humanitaires,” Revue internationale de la croix-rouge, No. 780, novembre–décembre 1989, p. 546; Maurice Torrelli, “La neutralité,” Annales de droit international médical, No. 35, mai 1991, p. 48. 410 Hans Haug, “Neutrality as a Fundamental Principle of the Red Cross,” International Review of the Red Cross, No. 315, December 1996, p. 630. 411 Article 2 of Protocol I. 412 Articles 8/8/8/9 of the 1949 Geneva Conventions and Article 5 of Protocol I. 413 Christophe Swinarski, “La notion d’un organisme neutre et le droit international,” op. cit., pp. 830–831. See also Cornelio Sommaruga, “La neutralité suisse et la neutralité du CICR sont-elles indissociables? Une indépendance à sauvegarder,” Revue internationale de la croix-rouge, No. 795, mai–juin 1992, p. 279.

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organisation meeting the conditions to assume the role of substitute, and the ICRC is by definition a neutral organisation.414 However, the principle of neutrality is not always easy to follow, even for the ICRC.415 Maurice Torrelli and Jacques Meurant believe that impartiality and neutrality are two distinct principles. Both principles imply an absence of bias, and each has a different addressee. Neutrality implies a reserve toward the parties to the conflict and their ideologies to offer impartial humanitarian aid.416 Even the Geneva Conventions give priority to impartiality over neutrality in mentioning “impartial humanitarian bodies” without referring to neutrality.417 Moreover, as seen previously, neutrality implies abstention, while impartiality is linked to action.418 The principle of neutrality is also relative. For example, the implications of the principle of neutrality are different for the various parts of the Movement. A distinction must be drawn between the neutrality of the National Societies, which is influenced to some extent by their status as humanitarian auxiliaries 414 See, for example, the principle of neutrality in the Fundamental Principles of the Red Cross as adopted by the International Conference of the Red Cross in 1965 (binding principle for the ICRC as a member of the Movement), Article 6 of the Statutes of the International Red Cross and Article 4 of the Statutes of the ICRC. Moreover, the neutrality of the ICRC comes from its composition (Swiss nationals) and its tradition: see Max Huber, “Croix-Rouge et neutralité,” op. cit., p. 4. See also Denise Plattner, “ICRC Neutrality and Neutrality in Humanitarian Assistance,” International Review of the Red Cross, No. 311, April 1996, pp. 161–179; Yves Sandoz, “La notion de protection dans le droit international humanitaire et au sein du Mouvement de la Croix-Rouge,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 984; Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations, The Right and Duty to Humanitarian Assistance, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, p. 67; Cornelio Sommaruga, “La neutralité suisse et la neutralité du CICR sont-elles indissociables? Une indépendance à sauvegarder,” op. cit., pp. 279–283. 415 See Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations, The Right and Duty to Humanitarian Assistance, for several examples in which the ICRC’s neutrality was questioned, pp. 139–177. 416 Jacques Meurant, “Principes fondamentaux de la Croix-Rouge et humanitarisme moderne,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 899. 417 Maurice Torrelli, “La neutralité,” Annales de droit international médical, No. 35, mai 1991, pp. 48–49. 418 Christian Dominicé, “La neutralité et l’assistance humanitaire,” Annales de droit international médical, No. 35, mai 1991, p. 119; Jean Pictet, “Les principes fondamentaux de la Croix-Rouge,” op. cit., p. 50.

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of their governments, consequently entailing national allegiance, and the ICRC’s neutrality, which is absolute.419 Nowadays, the criterion of neutrality is mentioned less and less often by academics, international courts, and other actors such as NGOs.420 The International Court of Justice, in the Nicaragua case, did not refer specifically to neutrality, which means that aid given without neutrality could nevertheless be humanitarian, as long as it was impartial.421 Neutrality has also been challenged in practise. In civil wars, which have been the main form of conflict since 1945, the involvement of governments and major international political organisations in humanitarian action has added to the problems of maintaining impartiality and neutrality. Humanitarian action has sometimes been used as a means of achieving political objectives. Furthermore, a number of aid workers, as in Rwanda and Bosnia, have taken a partisan view about the causes of a conflict, protested publicly about atrocities, or developed strong sympathies or antipathies to the parties.422 In addition, humanitarian aid is being provided in ever greater amounts by the United Nations, which is not always a neutral organisation.423 Lalive stated that “considering in abstracto a system in which war is unlawful and exposes the offender to sanctions from other States, it may be said that collective security and neutrality are incompatible.”424 At the same time, it is doubtful whether a body could be granted permanent ability to act as a neutral intermediary without establishing its freedom from subordination to other subjects of international law.425 It follows that neutral status, if attributed to 419 Hans Haug, “Humanity for All: The International Red Cross and Red Crescent Movement,” op. cit., pp. 92 and 465–468; Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit. 420 Maurice Torrelli, “La neutralité en question,” Revue générale de droit international public, 1992, p. 5. 421 Marie-José Domestici-Met, “La neutralité en voie d’extinction?,” dans Marie-José Domestici-Met (ed.), Aide humanitaire internationale: un consensus conflictuel?, Economica, Paris, 1996, p. 321. 422 Adam Roberts, Humanitarian Action in War, Aid, Protection and Impartiality in a Policy Vacuum, Oxford University Press, New York, 1996, pp. 52–53. 423 Ibid., pp. 323–324. 424 Jean-Flavien Lalive, “International Organization and Neutrality,” The British Yearbook of International Law, 1947, p. 72. For a similar opinion, see Nicolas Politis, La neutralité et la paix, Hachette, Paris, 1935 and Dietrich Schindler, “Aspects contemporains de la neutralité,” RCADI, Vol. 121, 1967, p. 226. 425 Christophe Swinarski, “La notion d’un organisme neutre et le droit international,” op. cit., p. 826 and Dietrich Schindler, “Die Neutralität des Roten Kreuzes,” in Des Menschen Recht zwischen Freiheit und Verantwortung, Dunker & Humblot, Berlin, 1989, p. 145.

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an entity other than a State, presupposes international personality.426 The support that a humanitarian organisation can find in the neutrality of a State hosting it is now becoming more uncertain because the parties to the conflict are no longer just States. Therefore, the interests of the neutral State can contradict the credibility of the humanitarian aid, thereby creating difficulties between a neutral State and another party to a conflict.427 Thus, neutrality is not necessarily a criterion for an impartial humanitarian organisation, even if it is a great advantage. For example, for the members of such an organisation, a passport from a neutral country can be a serious advantage, as can the possibility of being established in a neutral country, like the ICRC.428 The principle of neutrality only intended to support the principle of humanity’s realisation.429 For its part, the ICRC has always regarded neutrality not as an end in itself, but as a means of carrying out its mandate on behalf of victims of armed conflict and internal disturbances.430 Therefore, the ICRC regards respect for the different duties implied by neutrality as essential for maintaining its status and its functions.431 This should be the same for other humanitarian organisations.

426 Denise Plattner, “ICRC Neutrality and Neutrality in Humanitarian Assistance,” International Review of the Red Cross, No. 311, April 1996, p. 163. 427 Christian Dominicé, “La neutralité et l’assistance humanitaire,” Annales de droit international médical, No. 35, mai 1991, p. 124. 428 Ibid., p. 120. 429 Christian Dominicé, “La neutralité et l’assistance humanitaire,” op. cit., p. 119; Hans Haug, “Uber die Grundprincipen des Roten Kreuzes, besonders den Grundsatz der Neutralitat,” in Walter Haller/Georg Müller/Alfred Kölz/Daniel Thürer (ed.), Festschrift fur Dietrich Schindler, Helbing & Lichtenhahn, Basel, 1989, p. 241; Theo Van Boven, “Some Reflections on the Principle of Neutrality,” in Walter Haller/Georg Müller/Alfred Kölz/Daniel Thürer (ed.), Festschrift fur Dietrich Schindler, Helbing & Lichtenhahn, Basel, 1989, p. 643; Marion Harroff-Tavel, “Neutralité et impartialité. De l’importance et de la difficulté, pour le Mouvement international de la Croix-Rouge et du Croissant-Rouge, d’être guidé par ces principes,” Revue internationale de la croix-rouge, No 780, novembre–décembre 1989, p. 563. 430 See Jean Pictet, “Red Cross Principles,” op. cit., p. 58; Marion Harroff-Tavel, Marion HarroffTavel, “Neutralité et impartialité. De l’importance et de la difficulté, pour le Mouvement international de la Croix-Rouge et du Croissant-Rouge, d’être guidé par ces principes,” op. cit., p. 580; Jacques Meurant, “Principes fondamentaux de la Croix-Rouge et humanitarisme moderne,” op. cit., p. 899; Yves Sandoz, “Droit or devoir d’ingérence and the right to assistance: the issues involved,” International Review of the Red Cross, No. 288, May–June 1992, pp. 226 and 234. 431 Denise Plattner, “ICRC Neutrality and Neutrality in Humanitarian Assistance,” op. cit., pp. 166–167.

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6.2.5 Other Criteria: The Consent of the Parties to the Conflict The activities of the organisation are subject to one final condition: the consent of the parties to the conflict concerned.432 The parties need not give a reason for their refusals.433 Article 81 of Protocol I could be interpreted as imposing the same requirement, since its paragraph 4 refers to “other humanitarian organizations referred to in the Conventions and this Protocol which are duly authorized by the respective Parties to the conflict.” But this mention is included because of the reference to voluntary aid societies, as well as to aid societies that provide assistance for prisoners of war.434 The consent of all parties to the conflict is, therefore, not necessary, provided that these societies are legally constituted. Under Article 96 of the Fourth Geneva Convention, the phrase “other humanitarian organizations” refers to those that the Detaining Power has duly authorised to visit camps. The Detaining Power can limit the number of organisations authorised to carry out their activities in its territory.435 The Convention provides, as did the 1929 Convention, that delegates may carry out their functions only if they have been duly accredited by the Detaining Power. This means that permission must be granted twice, once for the relief society and a second time for its delegates.436 In addition, in drafting Article 142, it was perceived that the Powers could not be obliged to accept that any organisations that wished to come to the assistance of war victims had a legal right to move about freely in their territory. Thus, provision was made for the Powers to be authorised to restrict the number of societies whose delegates would be admitted. However, this possibility was immediately modified by the condition “that such limitation shall not hinder the supply of effective and adequate relief to all protected persons.”437 The Commentary on this Article suggested that it come within the competence of the Protecting Powers and of the ICRC to evaluate the need for relief. 438 At the 1949 Diplomatic Conference, the Union of Soviet Socialist Republics stated that it did not seem necessary to mention the ICRC in Article 3 of the 1949 Geneva Conventions, since the ICRC or any other body would always be 432 433 434 435

Article 9/9/9/10 common to the 1949 Geneva Conventions. Commentary Article 9 of the First Geneva Convention, p. 110. Commentary Article 81 of Protocol I, p. 944. Article 142 of the Fourth Geneva Convention; Commentary Article 96 of the Fourth Geneva Convention, p. 419. 436 Commentary Article 142 of the Fourth Geneva Convention, p. 563. 437 Commentary Article 142 of the Fourth Geneva Convention, p. 564. 438 Commentary Article 142 of the Fourth Geneva Convention, pp. 564–565.

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free to offer its services to perform humanitarian duties.439 But the delegations of the United Kingdom, the ICRC, and Switzerland wanted to retain the initiative right of the ICRC and other bodies.440 The delegate from Burma stated that an impartial humanitarian body could offer its services at the request of the de jure government or of the insurgents, that the agreement of the de jure government was not necessary, and that this was not acceptable.441 The delegate from the United States also stated that the High Contracting Party could not be forced to accept the services of a humanitarian body chosen by the insurgents.442 In practise, the consent of the parties to the conflict can be made in informal ways, and it can be deduced if the parties do not oppose an organisation’s humanitarian activities. MSF and other humanitarian organisations have, in practise, intervened without seeking the consent of the countries concerned. 6.3 Mandate of the Impartial Humanitarian Organisations The mandate granted to impartial humanitarian organisations by the 1949 Geneva Conventions and Additional Protocols is very broad. Such organisations can offer their services to the parties to the conflict,443 undertake humanitarian activities for the protection and relief of the wounded and sick, medical personnel, chaplains,444 and victims of armed conflicts,445 and fulfil the duties incumbent upon the Protecting Powers.446 More specifically, such organisations can establish neutralised447 or demilitarised448 zones for protected persons, provide relief to the population of an occupied territory449 or of a territory under the control of a party to the conflict,450 care for the wounded and sick,451 and search for missing persons.452 439 440 441 442 443 444 445 446 447 448 449 450

Final Record, Joint Committee, Vol. II-B, p. 98. Final Record, Plenary Meeting, Vol. II-B, pp. 335 and 337. Final Record, Plenary Meeting, Vol. II-B, p. 337. Final Record, Joint Committee, Vol. II-B, p. 94. Article 3 common of the 1949 Geneva Conventions and Article 5 of Protocol I. Article 9/9/9/10 common of the 1949 Geneva Conventions. Article 81 of Protocol I. Article 10/10/10/11 common of the Geneva Conventions and Article 5 of Protocol I. Article 15 of the Fourth Geneva Convention. Article 60 of Protocol I. Articles 59 and 61 of the Fourth Geneva Convention. Article 70 of Protocol I, Article 18 of Protocol II, and Article 103 of the 1994 San Remo Manual. 451 Articles 9 and 22 of Protocol I (implicitly). 452 Articles 32 and 74 of Protocol I.

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In addition, it should be noted that in 1953, the ICRC created a Commission of experts to examine the question of assistance to the political prisoners. The experts made a few commentaries about the impartial humanitarian body mentioned in Article 3 common of the Four Geneva Conventions with regard to the newly-adopted Universal Declaration of Human Rights. The Commission stated that these bodies could play a role in the protection of the fundamental human rights mentioned in the Declaration. The Commission added that the role of such an organisation was to ensure that the measures taken are accompanied with material and moral guarantees that are in conformity with the principles of the Declaration.453 7

Organisations Giving Assistance to Prisoners of Wars

Such organisations are mentioned in provisions covering only international armed conflicts. References to These Organisations in the Hague and Geneva Conventions A disposition mentioning the “relief societies for the prisoners of war” was proposed by Henry Dunant at the 1874 Brussels Conference and was subsequently rejected.454 However, this mention was finally adopted in the 1899 Convention II and 1907 Convention IV of The Hague.455 The 1929 Geneva Convention on Prisoners of War also included several provisions on such relief societies.456 7.1

453 Comité International de la Croix-Rouge, “Commission d’experts chargée d’examiner la question de l’assistance aux détenus politiques,” Revue internationale de la croix-rouge, No. 414, juin 1953, p. 445. 454 Actes de la Conférence de Bruxelles (1874), Imprimerie du Moniteur, Bruxelles, 1874, pp. 13, 19, 21, and 67. 455 In their Article 15, the Conventions mentioned “relief societies for prisoners of war,” which are “regularly/properly constituted in accordance with the law of the/their country [and] with the object of serving as the intermediary for charity/channel for charitable effort.” 456 Article 39 of the 1929 Geneva Convention on Prisoners of War refers to “duly recognized and authorized relief societies” that may send works and books to prisoners of war. Article 70 of the same Convention refers to “a relief society duly recognized and authorized by the Power in whose armed forces [the prisoners] served.” Articles 43 and 78 of the 1929 Geneva Convention on Prisoners of War also mentioned “societies for the relief of prisoners of war.”

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Finally, several Articles of the 1949 Geneva Conventions mention “the Protecting Power, the ICRC, or any other agencies/organisations assisting/ giving relief to prisoners of war/internees.”457 During the discussions at the Geneva Conference, some delegations wanted the ICRC to be the only organisation mentioned apart from the Protecting Power in Article 111 of the Fourth Geneva Convention, but this was not adopted.458 The drafts of several of these Articles mentioned a “body giving assistance to internees/prisoners of war.” However, at the 1949 Diplomatic Conference, the Drafting Committee replaced “body” with “organisation” in these Articles.459 Article 28 of the Third Geneva Convention also states that “the profits made by camp canteens shall be used for the benefit of the prisoners; a special fund shall be created for this purpose,” and that “when a camp is closed down, the credit balance of the special fund shall be handed to an international welfare organization.” There is no very precise definition of this “international welfare organization.” The Commentary suggests that this refers to “one or more of the relief societies recognized by the Detaining Power in accordance with Article 125.” It should be noted that this organisation would be designated by the Detaining Power responsible for the management and utilisation of the fund. The representative of the prisoners who contributed to the fund may also be consulted regarding the selection of the organisation.460 These references were inserted in the Conventions because several such organisations played an important role in the relief of prisoners of war during the First and Second World Wars, the role of which was recognised at the Diplomatic Conferences.461 Two other draft Articles that mentioned organisations assisting the prisoners of war were introduced at the 1949 Diplomatic Conference but were not adopted. Draft Article 126 of the Third Geneva Convention stated that “the Detaining Powers may allow the representatives of other bodies to visit the 457 Articles 56, 72, 73, 79, 81, and 109 of the Third Geneva Convention and Article 9 of Annex III of the same Convention; Articles 98, 102, 104, 108, 109, and 111 of the Fourth Convention. 458 In particular, the delegation of the United Kingdom; See Final Record, Committee III, Vol. II-A, pp. 683 and 730. 459 Article 125 of the Third Geneva Convention and Articles 98, 102, 104, 108, 109, and 142 of the Fourth Convention: Final Record, Drafting Committee, Vol. II-B, pp. 199–200; Final Record, Committee II, Vol. II-B, p. 184. 460 Commentary Article 28 of the Third Geneva Convention, p. 204. 461 See, for example, “L’aide aux prisonniers de guerre du Comité universel des Unions chrétiennes de jeunes gens,” Revue internationale de la croix-rouge, No. 489, mai 1943, pp. 492–495. 

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prisoners of war to whom such bodies may desire to convey spiritual aid or material relief.” The Committee deleted this last paragraph because it determined that the provision in question should figure in Article 125 of the Third Geneva Convention.462 Another draft Article in the Third Geneva Convention stated that “the Protecting Powers and the bodies giving assistance to prisoners of war may send single works and collections of books to prisoners’ camps.” The Committee deleted it, as similar provisions had already been inserted into Article 72 of the Third Geneva Convention.463 On the contrary, the mention of the other agencies giving relief to prisoners of war in Article 56 of the Third Geneva Convention was added at the Diplomatic Conference by the ICRC delegate.464 Definition of the Organisations Giving Assistance to the Prisoners of War 7.2.1 These Societies must have Relief Purposes These organisations are generally recognised as societies having relief activities. The Commentaries on the Geneva Conventions define these organisations as “charitable organisations,” “relief organisations,” “non-denominational social welfare organisations,”465 or “relief societies.”466 At the 1949 Conference, in response to the United Kingdom delegate’s assertion that the phrase “or any other body assisting the prisoners” in the Third Geneva Convention, was too vague, the ICRC’s delegate stated that it was an amplification of the term “relief societies,” which appeared in the 1929 Convention.467 During the discussion on draft Article 81 of the Third Geneva Convention, the ICRC delegate referred to these bodies as “relief organisations.”468 In the Commentaries on Articles 102 and 104 of the Fourth Geneva Convention, these organisations are defined as “any other relief society [apart from the ICRC]”469 or “relief organisations such as the ICRC.”470 Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention distinguish “relief societies” from “any other organisation assisting 7.2

462 463 464 465 466 467 468 469 470

Final Record, Committee II, Vol. II-A, p. 366. Final Record, Committee II, Vol. II-A, p. 364. Final Record, Committee II, Vol. II-A, p. 276. Commentary Article 72 of the Third Geneva Convention, p. 358; Commentary Article 98 of the Fourth Geneva Convention, p. 426. Commentary Article 108 of the Fourth Geneva Convention, pp. 454–455. Final Record, Committee II, Vol. II-A, p. 287. Final Record, Committee II, Vol. II-A, p. 290. Commentary Article 104 of the Fourth Geneva Convention, p. 444. Commentary Article 102 of the Fourth Geneva Convention, p. 439.

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prisoners of war” and “any other organisation assisting prisoners of war” by “any other organisations assisting the protected persons.” The Commentary on these Articles explained the reason for the distinction; the difference rested on the appearance during the Second World War of institutions for the relief of war victims which were of a public or semi-public character, but could not be called relief societies. For that reason, the phrase “or any other organisation assisting prisoners of war/protected persons” was added. This wording was designed to be applicable to “bodies whose principal and continuing purpose was not assistance to prisoners of war, but which during a conflict might include such assistance among their tasks; the humanitarian character of the organization may therefore be temporary.”471 The term includes organisations whose work for prisoners is incidental to their main activity and is restricted to wartime.472 The “relief societies” are the same as those cited in Article 78 of the 1929 Convention. These societies are probably not international relief organisations, since the Article was first inspired by the activities of national relief committees and committees set up on neutral territory. The Commentary on these Articles states that it should apply primarily to the ICRC.473 The ICRC is therefore mentioned as an example of an organisation assist­ ing the prisoners of war. The term “ICRC” here should be understood to include the body established by the ICRC to support prisoners: the Central Prisoners of War Information Agency.474 It should be noted that during the 1947 Experts Conference, the Commission drafted Article 41, which stated that “belligerents shall ensure all facilities for the transmission, through the intermediary of the Protecting Power or any competent international body, in particular the Central Prisoners of War Agency, of official papers or documents destined for prisoners of war or signed by them.”475 The Commission added a reference to the “representative of any competent international body” in draft Article 42 on the complaints of the prisoners of war. Originally, the ICRC suggested that its name be mentioned in this Article, but the Commission thought it preferable to use the more general term of “competent international body.”476 471 Commentary Article 125 of the Third Geneva Convention, p. 595; Commentary Article 142 of the Fourth Geneva Convention, p. 560. 472 ICRC, The Geneva Conventions of August 12, 1949, Analysis for the Use of National Red Cross Societies, Vol. II, ICRC, Geneva, 1950, p. 75. 473 Commentary Article 125 of the Third Geneva Convention, p. 594; Commentary Article 142 of the Fourth Geneva Convention, pp. 558–559. 474 Mentioned in Article 79 of the 1929 Geneva Convention on Prisoners of war and Article 123 of the Third Geneva Convention. 475 Ibid., pp. 194–195. 476 Ibid., pp. 195–196.

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7.2.2

These Organisations must be of a Humanitarian and Impartial Character In addition, the Commentary on the Geneva Conventions implies that these organisations must also be humanitarian and impartial. According to the Commentary on Article 73 of the Third Geneva Convention, for an analysis of the term, “any other organisation giving assistance to prisoners of war,” reference should be made to Articles 9 and 125 of the Convention.477 Article 9 refers to the humanitarian activities which an “impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of prisoners of war and for their relief.” The Commentary on Article 109 of the Third Geneva Convention mentioning an “organisation giving assistance to the internees” added that such an organisation “can only be a humanitarian body which affords every guarantee of impartiality and competence, like the ICRC, and which is thus duly authorized by the Detaining Power to check the distribution of parcels.”478 The delegate from Italy also suggested replacing the term “or any other body assisting the prisoners” in the Third Geneva Convention with “impartial humanitarian body,” but this suggestion was not adopted.479 7.2.3 These Organisations must be Duly Recognised and Authorised Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention both mention that “such societies or organizations may be constituted in the territory of the Detaining Power or in any other country, or they may have an international character.” The expression “in any other country” also covers relief societies in occupied countries. The societies of “an international character” were essentially intended to be international federations made up of several national relief societies pursuing the same aims.480 The Committee II of the Diplomatic Conference stated that this Article, “which has remained substantially unchanged since 1907, has been brought up to date in order to take account of the greatest possible number of organizations which come to the relief of prisoners of war, and especially of the religious organizations.”481 The same requirements are valid for Article 109 of the Fourth

477 478 479 480 481

Commentary Article 73 of the Third Geneva Convention, p. 361. Commentary Article 109 of the Fourth Geneva Convention, p. 458. Final Record, Committee II, Vol. II-A, p. 287. Commentary Article 142 of the Fourth Geneva Convention, p. 559. Final Record, Committee II, Vol. II-A, p. 574.

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Geneva Convention,482 Article 79 of the Third Geneva Convention,483 and Article 113 of the Third Geneva Convention.484 As mentioned in The Hague Convention of 1907 and the Geneva Convention of 1929, these organisations must be approved by the parties.485 The Third486 and the Fourth487 Geneva Conventions contain a similar provision. These agencies must have been authorised by the military authorities of the Detaining Power to visit prisoners of war camps.488 The “relief societies/organisations assisting the prisoners of war/internees” therefore include the National Societies.489 During the discussion of Article 10/10/10/11, the ICRC stated that three Conventions mention “relief societies”: the first Convention mentions “societies acting as auxiliaries to the medical services of the army,” and the Third and Fourth Conventions mention “relief societies assisting prisoners of war or internees.” These relief societies are all National Societies.490 Several scholars stated that the societies mentioned in 482 The Commentary on Article 109 refers for an analysis of “any other organization giving assistance to the internees” to Article 142 of the Fourth Convention (and therefore to Article 125 of the Third Convention, which is similar in content): see Commentary Article 109 of the Fourth Geneva Convention, p. 456. 483 The Commentary on Article 79 also implies that the definition of “any other organization which may assist them [the prisoners of war]” is the same as in Article 125 of the Third Geneva Convention: see Commentary Article 79 of the Third Geneva Convention, p. 390. 484 Regarding the meaning of “an organization duly recognized by the said Power and giving assistance to the prisoners,” for the Commentary on Article 113 of the Third Geneva Convention, reference should be made to the Commentary on Article 125 of the Third Geneva Convention, see Commentary Article 113 of the Third Geneva Convention, p. 531. 485 Article 15 of the Hague Conventions refers to “relief societies for prisoners of war,” which are “regularly/properly constituted in accordance with the law of the/their country [and] with the object of serving as the intermediary for charity/channel for charitable effort.” Article 39 of the 1929 Geneva Convention on Prisoners of War refers to “duly recognized and authorized relief societies” that may send works and books to prisoners of war. Article 70 of the same Convention refers to “a relief society duly recognized and authorized by the Power in whose armed forces [the prisoners] served.” 486 Article 113 of the Third Geneva Convention refers to “an organization duly recognized by the said Power [Power on which the prisoners of war depend] and giving assistance to the prisoners.” 487 Commentary Article 111 of the Fourth Geneva Convention, p. 467. 488 Article 56 of the Third Geneva Convention; Final Record, Vol. II-A, p. 277; Commentary Article 56 of the Third Geneva Convention, p. 294. 489 Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, op. cit., p. 89. 490 Final Record, Plenary Meeting, Vol. II-B, pp. 347–350.

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Article 78 of the 1929 Convention logically include the National Societies.491 In particular, during the discussion of the revision of this Article, the 1946 Commission recommended that relief should be supplied by recognised Red Cross Societies and, where the services of other organisations are required, these institutions should work only under the supervision of the National Societies or the ICRC. During the 1946 Conference, the National Societies also expressed a willingness to carry out these tasks.492 7.2.4 Other Criteria As the ICRC pointed out in its report to the 1946 Conference, the 1929 Geneva Convention does not mention whether relief activities could be carried out only in the home countries of such societies and on behalf of enemy prisoners of war, or whether they could also be extended to nationals of these countries held as prisoners by the adversary.493 During the 1947 Experts Conference, the Commission adopted the text proposed by one delegation, which modified Article 78 of the 1929 Convention to include the statement that relief agencies “may be indigenous to the countries where prisoners of war are detained, or established in other countries, or international in character.” The Commission also added that “the special position of the ICRC in this field shall at all times be recognized and respected.”494 7.3 Mandate of the Organisations Assisting Prisoners of War These organisations have the mandate to provide relief to prisoners of war and internees,495 including books496 and “foodstuffs, clothing, medical supplies, and articles of a religious, educational or recreational character.”497 These 491 Jean Pictet, “Le droit international et l’activité du Comité international de la Croix-Rouge en temps de guerre,” op. cit., p. 129; Max Huber, “Principes, tâches, et problèmes de la Croix-Rouge dans le droit des gens,” op. cit., p. 801. 492 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 254–255. 493 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 254–255. 494 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, op. cit., pp. 197–198. 495 Articles 15 of the 1899 The Hague Convention II and 1907 Convention IV; Article 78 of the 1929 Geneva Convention on Prisoners of war; Articles 73 and 125 of the Third Geneva Convention. 496 Article 39 of the 1929 Geneva Convention on Prisoners of war. 497 Article 72 of the Third Geneva Convention and Article 108 of the Fourth Geneva Convention.

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organisations can also visit the prisoners,498 nominate a prisoner for medical inspection with a view to repatriation or accommodation in a neutral country,499 assist prisoners in organising their leisure time within the camps,500 and have the right to receive a record of the labour detachments of prisoner of war camps they visit501 or to communicate with the representatives of prisoners of war and civilian internees.502 Their mandate also includes relief for civilian internees,503 including the conveyance of mail.504 8

Relief Societies

This section discusses the definition of “relief societies” mentioned in the 1880 Laws of War on Land, the 1899 and 1907 The Hague Conventions, the 1913 Manual of the Laws of Naval War, the 1929 Geneva Convention on Prisoners of War, the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality, the Four 1949 Geneva Conventions, and Additional Protocol II. Relief societies are therefore mentioned in provisions covering both international and non-international armed conflicts. Hospital Ships Equipped by Relief Societies: References and Definition Several IHL provisions state that “hospital-ships, equipped wholly or in part at the cost of private individuals or officially recognized relief societies, shall be respected and exempt from capture.”505 Other articles refer to “hospital-ships belonging to relief societies.”506 Moreover, Article 24 of the Second Geneva Convention provides protection for “hospital-ships utilized by National Red 8.1

498 Article 125 of the Third Geneva Convention. 499 Article 70 of the 1929 Geneva Convention on Prisoners of war and Article 113 of the Third Geneva Convention. 500 Article 125 of the Third Geneva Convention. 501 Article 56 of the Third Geneva Convention. 502 Article 81 of the Third Geneva Convention and Article 104 of the Fourth Geneva Convention. 503 Articles 98, 108 and 109 of the Fourth Geneva Convention. 504 Article 111 of the Fourth Geneva Convention. 505 Articles 2 common of the 1899 The Hague Convention III and the 1907 The Hague Convention X; Article 42 of the 1913 Manual of the Laws of Naval War. 506 Article 12 of the 1907 The Hague Convention X; Article 83 of the 1913 Manual of the Laws of Naval War; Article 14 of the Second 1949 Geneva Convention.

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Cross Societies, by officially recognized relief societies or by private persons.” Article 25 of the Second Geneva Convention reproduces Article 24, apart from the difference that it concerns relief societies of neutral countries. As seen previously, “officially recognised relief societies” included the National Societies and other voluntary aid societies.507 Article 10 of the revised draft of the 1907 The Hague Convention X mentioned “hospital-ships utilised by private individuals or officially recognized relief societies.” During the discussion of this Article at the 1946 Conference, the Committee recommended the following modification: “hospital-ships, employed by the National Red Cross Societies, by voluntary aid societies duly recognized, or by private persons.” A similar change was inserted into draft Article 11 on “hospital-ships utilized by private individuals or officially recognized relief societies of neutral countries.”508 The term “relief societies” was therefore intended by the drafters to be equivalent to “voluntary aid societies.” The Commentary on the Second Geneva Convention also stated that the term “relief societies” refers to the voluntary aid societies.509 Such societies do indeed assist medical services and have been duly recognised and authorised by the governments of their countries. Therefore, it is clear that the term “relief societies” should be assimilated into “voluntary aid societies.” As we have seen previously, the voluntary aid societies have been recognised and authorised by a party to the conflict concerned and notified by the State to all other States. Moreover, their staffs are subject to military laws and regulations and are employed to perform the same duties as the personnel of the medical services. In addition, according to Articles 24 and 25 of the Second Geneva Conventions, the parties to the conflict must be notified of these hospitalships. They must also be given an official commission and must be provided with control certificates. Hospital-ships belonging to a neutral country are not under the obligation of an official commission or a control certificate. Nevertheless, they must be placed under the control of one of the parties to the conflict, with the authorisation of that party and with the previous consent of their own governments.510 507 Commentary Article 24 of the Second Geneva Convention, p. 164. 508 Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., pp. 56–58. 509 Commentary Article 24 of the Second Geneva Convention, p. 164; Commentary Article 25 of the Second Geneva Convention, p. 167. 510 It should be noted that during the discussion on Article 25, the delegation of Norway stated that lifeboats are often operated from temporary bases and not always employed

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8.2 Other Relief Societies 8.2.1 Relief Societies Assisting Civilians and the Sick and Wounded Other IHL texts have mentioned “relief societies,” meaning “voluntary aid organisations.” For example, relief societies were defined as follows in Article 13 the 1880 Laws of War on Land: “persons employed in hospitals and ambulances—including . . . the members and agents of relief associations which are duly authorized to assist the regular sanitary staff.” However, most of the IHL provisions regarding “relief societies” have had a broader meaning for this term. The 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality cited, for example, in its Article 8 “duly recognized relief societies, whose object is to act as intermediaries in welfare activities.” The 1949 Geneva Conventions also adopted a broad understanding of this term. For example, Article 18 of the First Geneva Convention said that “the military authorities shall permit the inhabitants and relief societies . . . spontaneously to collect and care for wounded or sick of whatever nationality.” The addition of the relief societies in this text was proposed at the meeting of experts in June 1947, which had in mind a wide range of charitable societies or groups.511 Article 63 of the Fourth Geneva Convention provided that “recognized National . . . Societies . . . [and] other relief societies shall be permitted to continue their humanitarian activities.” The Diplomatic Conference mentioned the “other relief societies” by reference to private societies and organisations that carried out charitable work similar to that of the Red Cross during the Second World War.512 Therefore, “relief societies” is wider here than the idea of “voluntary aid societies.” Indeed, during the 1949 Diplomatic Conference, the delegate from the Netherlands asked whether the relief societies mentioned in Article 63 were the same as those to which Article 26 of the First Geneva Convention referred (i.e. the other voluntary aid societies), or whether Article 63 meant relief societies in general. The ICRC’s delegate responded that all relief societies, whether recognised or not, were referred to in this Article. In response, the delegate from the Netherlands submitted a proposal clarifying that the relief societies referred to were those duly authorised and by “officially recognized relief associations,” being built, equipped, and operated by private persons. It suggested simplifying the procedure for notifying the names and characteristics of the boats and for the confirmation of this notification by the Protecting Power: Final Record, Committee I, Vol. II-A, p. 66. 511 Commentary Article 18 of the First Geneva Convention, p. 190. 512 Commentary Article 63 of the Fourth Geneva Convention, p. 333.

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recognised by the government of the occupied territory.513 As such, this concerned all NGOs. It should be added that the mention of the “relief societies” in this Article was accepted by almost all States. Only the Soviet delegation suggested deleting the reference to relief societies, but its suggestion was rejected.514 Relief societies can also act in non-international armed conflicts. Article 18 of Protocol II states that “relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion, and Sun) organizations, may offer their services.” According to the commentary on Article 18, the term “relief society” was to be understood in its traditional broad sense, i.e. as mentioned in Article 15 of the Hague Regulations of 1899, the 1907 Regulations, and the Geneva Conventions of 1906 (Article 10), 1929 (Article 10), and 1949 (Articles 18 and 26 of the First Convention, for example).515 These provisions refer mostly to voluntary aid societies. This interpretation is, however, far from self-evident. The original draft Article 18 of Protocol II did not contain any reference to National Societies or relief societies.516 Article 14 submitted by the ICRC at the 1974–1977 Diplomatic Conference first stated that relief societies and the civilian population shall be permitted to offer shelter, care, and assistance to the wounded and sick.517 A proposal offered by Australia suggested the following change: “relief societies, such as Red Cross (Red Crescent, Red Lion, and Sun) organizations and the civilian population.”518 Pakistan then proposed the following: “the civilian population and relief societies located in the territory of the High Contracting Party, such as Red Cross, Red Crescent, Red Lion, and Sun organizations.”519 As modified, Article 14 was then incorporated into Article 18 of Protocol II.520 Thus, it seems here that the term “relief societies” has the same meaning as in Article 63 of the Fourth Geneva Convention. These provisions do not contain indications of the criteria for these relief societies. It can therefore be concluded that legally constituted NGOs fit the definition of these organisations.

513 514 515 516 517 518 519 520

Final Record, Committee III, Vol. II-A, p. 670. See Annex 292, Final Record, Vol. III, p. 139; Final Record, Committee III, Vol. II-A, p. 753. Commentary Article 18 of Protocol II, p. 1477, para. 4872. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 43. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 38. Official Records, Vol. IV, CCDH/II/227, p. 50. Ibid., Vol. IV, CCDH/427, p. 51. Ibid., Vol. VII, CCDH/SR.53, pp. 143–150.

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8.2.2 Relief Societies Assisting Prisoners of War During the Franco-German War of 1870, when large numbers of French prisoners were interned in Germany, committees were set up to bring them aid. It was suggested that these precedents should be recognised by means of a clause in the Brussels Declaration of 1874. The proposal was not adopted, but instead became Articles 15 of the 1899 and 1907 Hague Regulations and 78 of the 1929 Prisoners of War Convention.521 These Articles mention “relief societies for prisoners of war,” which are “regularly constituted in accordance with the laws of their country, and having for their object to serve as intermediaries for charity/charitable purposes.” Article 39 of the 1929 Convention on Prisoners of War mentions “duly recognized and authorized relief societies” and Article 70 a “relief society duly recognized and authorized by that Power [Power in whose armed forces prisoners served].” All of these provisions require that the society be recognised and authorised, which is the case for most NGOs operating in a country. Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention provide facilities for “relief societies or any other body assisting prisoners of war.”522 This mention was made by reference to certain religious bodies which carried on activities on behalf of war victims during the Second World War.523 During the discussion on draft Article 123 of the Third Geneva Convention, the delegate from Venezuela stated that relief societies had done useful work during the last war, particularly the Roman Catholic relief societies and the Young Men’s Christian Association.524 The Drafting Committee added that Articles 123 and 125 include the greatest possible number of organisations that come to the relief of prisoners of war.525 The commentary on Article 142 of the Fourth Geneva Convention also implies that the term “relief societies” in this article has a similar meaning to the term

521 ICRC, The Geneva Conventions of August 12, 1949, Analysis for the Use of National Red Cross Societies, Vol. II, op. cit., p. 73. 522 It should be noted that Article 142 was not part of the Stockholm draft, but has been added by an amendment of the Holy See, strongly supported by the delegate of Venezuela: See Annex 373, Final Record, Vol. III, p. 163; Final Record, Committee III, Vol. II-A, pp. 689–690 and 872. 523 Not, however without considerable opposition from some delegations: Final Record, Vol. II-A, pp. 300–302; Vol. II-B, pp. 322–323. See also Commentary Article 125 of the Third Geneva Convention, p. 595; Commentary Article 142 of the Fourth Geneva Convention, p. 561. 524 Final Record, Committee II, Vol. II-A, pp. 298–299. 525 Final Record, Committee II, Vol. II-A, p. 574.

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“organizations whose object is to give spiritual aid or material relief to (protected persons),” mentioned in Article 30 of the Fourth Geneva Convention.526 Therefore, relief societies under these provisions comply with the definition of “organisations assisting the prisoners of war.” These organisations are to be recognised and authorised by the government of their country and must have humanitarian activities in favour of prisoners. Articles 123 and 125 of the Third Convention and 142 of the Fourth Convention specify that these societies may have an international character and may be constituted in the territory of the Detaining Power or in any other country, based on a proposal to modify draft Article 125 from the United Kingdom which states that relief agencies “may be indigenous to the countries where prisoners of war are detained, or established in other countries, or international in character,”527 which was partly adopted.528 8.2.3 Discussions on Relief Societies at Diplomatic Conferences Several other provisions mentioned the relief societies but were deleted in the final draft of the treaty. Such provisions also allowed for a wide interpretation of the term “relief societies.” A draft Article (35) of Protocol II was entitled “National Red Cross and Other Relief Societies.” The first paragraph stated that the National Red Cross (Red Crescent, Red Lion, and Sun) Society and . . . relief societies shall be permitted to carry out their humanitarian activities in accordance with similar conditions.”529 This Article was deleted, however, by the Committee II because the substance of the Article became Article 18 of Protocol II.530 Moreover, the draft of the Fourth Geneva Convention, drafted at the 1947 Conference of Experts, mentioned relief societies in Articles 10, 16, and 32. Article 15 of the draft Convention, based upon Article 8 of the Tokyo draft, provided that civilians shall have all facilities of applying to “relief societies functioning in the country, and whose purpose is to act as intermediaries for welfare work.” The meeting was of the opinion that the words “duly recognised relief societies,” which were used in the Tokyo draft and other Conventions, lacked clarity. Article 31 stated that “the inhabitants shall have every opportunity of applying to the National Red Cross Society of the occupied country, and to other relief societies also recognized before occupation by the State whose territory is occupied.” A discussion took place concerning the sense of the 526 527 528 529 530

Commentary Article 142 of the Fourth Geneva Convention, p. 558. See Annex 180, Final Record, Vol. III, pp. 91–92; Final Record, Committee II, Vol. II-A, p. 301. Ibid., Committee II, Vol. II-A, pp. 341–342. ICRC, “Draft Additional Protocols,” in Official Records, Vol. I, p. 43. Official Records, Vol. IV, CDDH/427, p. 108 and Vol. VII, p. 151.

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phrase “relief societies also recognized,” which was taken from the Tokyo draft. The delegates agreed that the term should apply to societies recognised by the government of the occupied country and by the occupying power. 531 Additional debates led to the same conclusion. During the discussion of Article 10/10/10/11 common of the 1949 Geneva Conventions, the delegation of the Union of Soviet Socialist Republics suggested deleting in the third and fourth paragraphs the words “humanitarian organisation,” replacing them with the words “a relief society,” which more accurately defined the category of organisations suited to assume the functions of a Protecting Power. The French delegation did not agree, stating that a relief society is an association of persons who agree to help each other, which is different from a humanitarian organisation that is set up to give all kinds of assistance or relief to third parties. The ICRC also stated that it is not a relief society, adding that the three Conventions mention “relief societies”: the first Convention mentions “societies acting as auxiliaries to the medical services of the army,” and the third and fourth Conventions mention “relief societies assisting prisoners of war or internees.” These relief societies are all National Societies.532 8.3 Mandate of the Relief Societies Hospital-ships equipped by relief societies care for the wounded and sick at sea. Relief societies, therefore, assist the medical service personnel by making hospital-ships available.533 The relief societies here are similar to the voluntary aid societies. Relief societies can be admitted to the places of internment for the purpose of distributing relief to prisoners of war,534 including books,535 or nominating a prisoner for inspection (a view for repatriation or accommodation in a neutral country).536 They can also transmit and collect information concerning

531 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, op. cit., pp. 275–294. 532 Final Record, Plenary Meeting, Vol. II-B, pp. 347–350. 533 Commentary Article 24 of the Second Geneva Convention, p. 164 and Commentary Article 25 of the Second Geneva Convention, p. 167. 534 Articles 15 of the 1899 and 1907 Hague Regulations; Article 78 of the 1929 Prisoners of War Convention; Article 125 of the Third Geneva Convention; Article 142 of the Fourth Geneva Convention. 535 Article 39 of the 1929 Convention on Prisoners of War; Commentary Article 125 of the Third Geneva Convention, p. 598. 536 Article 70 of the 1929 Convention on Prisoners of War.

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prisoners and internees.537 The “relief societies” here are the same as the “organisations assisting the prisoners of wars.” Moreover, relief societies can undertake welfare activities,538 care for the wounded and sick,539 and have general humanitarian activities.540 9

International Religious Organisations

The “religious personnel,” “chaplains,” and “ministers of religion” mentioned previously should be distinguished from the personnel of “international religious organisations” or “other organisations whose object is to give spiritual aid or material relief to protected persons,” cited in the Third and Fourth 1949 Geneva Conventions.541 These organisations are mentioned in provisions covering only international armed conflicts. 9.1 Definition of International Religious Organisations The Third and Fourth Geneva Conventions provide that “the representatives of religious organisations” shall receive all necessary facilities and that “such societies or organizations may be constituted in the territory of the Detaining Power or in any other country, or they may have an international character.”542 The reference to religious organisations was only added in these articles at the Diplomatic Conference upon the request of the Holy See. The delegate from Venezuela strongly supported the Holy See proposal, since, during the Second World War, his government had followed “with the greatest interest the admirable work done in various countries by the Holy See, the Young Men’s Christian Association, and the American Quakers. It was highly desirable to

537 Article 123 of the Third Geneva Convention and Article 140 of the Fourth Geneva Convention. 538 Article 8 of the 1934 Tokyo Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality. 539 Article 13 of the 1880 Laws of War on Land; Article 18 of the First Geneva Convention; Article 18 of Protocol II. 540 Article 63 of the Fourth Geneva Convention and Article 18 of Protocol II. 541 These organisations are cited in Articles 35 and 125 of the Third Geneva Convention, and Articles 93 and 142 of the Fourth Geneva Convention. 542 Article 125 of the Third Geneva Convention and Article 142 of the Fourth Geneva Convention.

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strengthen the link thus established between those humanitarian organizations and the ICRC.”543 The delegate from the Holy See stated that religious organisations should be classed with the relief societies assisting prisoners of war. Their task should be first and foremost to render moral relief to the prisoners; hence, these organisations should be able to visit camps as they did in the 1914–1918 war.544 During the 1949 Diplomatic Conference, the delegation from the Holy See also mentioned that the voluntary aid societies should include the religious organisations mentioned in Articles 125 and 142.545 Moreover, Article 30 of the Fourth Geneva Convention states that “the Detaining or Occupying Powers shall facilitate . . . visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.” This wording was chosen by the delegate from Israel.546 He stated that the members of these bodies should be qualified and should possess the necessary experience for the visits.547 Article 143 of the Fourth Geneva Convention authorises delegates of the Protecting Powers and the ICRC to go to all places where there are protected persons. Therefore, the object of Article 30 was to grant the same prerogatives to organisations not mentioned in Article 143, ones that are also able to give protected persons moral or practical assistance. So far as the “other organisations” are concerned, the Detaining Power is left with certain discretionary and restrictive powers based upon Article 142. That Power, however, is under a moral obligation to consent to the work of any organisation that is capable of performing the tasks and that is impartial.548 Finally, other provisions of the Third and Fourth Geneva Conventions provide that chaplains/ministers of religion shall be free to correspond “with international religious organisations.”549 The reference to these organisations was

543 See Annex No. 373, Final Record, Vol. III, p. 163; Final Record, Committee III, Vol. II-A, pp. 689–960. 544 Final Record, Committee II, Vol. II-A, pp. 301–302 and 341. 545 Jean-Luc Hiebel, Assistance spirituelle et conflits armés, op. cit., p. 334. 546 The original text was as follows: “The Detaining or Occupying Powers may allow the representatives of other bodies to visit the protected persons to who they may desire to give spiritual or material relief.” The term “bodies” was then replaced by “organizations” by the Drafting Committee: Final Record, Drafting Committee, Vol. II-B, p. 192. 547 Final Record, Committee III, Vol. II-A, pp. 644 and 715. 548 Commentary Article 30 of the Fourth Geneva Convention, p. 219. 549 Article 35 of the Third Geneva Convention and Article 93 of the Fourth Geneva Convention.

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added at the 1949 Diplomatic Conference.550 For Article 35, difficulties arose at the Conference.551 In accordance with Article 125 of the Third Convention, limitations may be placed on the number of international religious organisations with which correspondence is permitted.552 The commentary on Article 93 of the Fourth Geneva Convention added that ministers of religion enjoy facilities for corresponding with the ecclesiastical authorities “in the country of detention or even, where this is possible, outside it.” It also stated that, since an international religious authority might be unaware of the rules laid down in the Convention,553 correspondence with that authority can be subject to the censorship provided for in Article 112.554 The “religious organisations” can, therefore, be international (or national), be qualified, assist prisoners of war in rendering moral and humanitarian relief to the prisoners, and possess the necessary experience in this area. The term should be understood to mean ecclesiastical authorities in Articles 35 of the Third Geneva Convention and 93 of the Fourth Geneva Convention.

550 Final Record, Committee II, Vol. II-A, p. 332, p. 440 (Article 35); Annexes No. 326 and 327, Final Record, Vol. III, p. 149; Final Record, Committee III, Vol. II-A, p. 724 (Article 93). 551 The text finally proposed by the Committee included the following text, as Article 29B, instead of the present Article 33, which corresponds almost identically to Article 28 of the First Convention. The text of Article 29B read as follows: “Members of medical personnel and chaplains whilst retained by the Detaining Power to look after prisoners of war shall be granted all facilities necessary to provide for the medical care of and religious ministrations to prisoners of war. Such retained personnel shall not be considered prisoners of war but shall receive all the benefits and protection of this Convention.” (See Final Record, Vol. II-A, p. 583.) The present Articles 34 to 37 were finally adopted in the form in which they were drafted, with the exception of a few amendments subsequently made to Article 35. At a plenary meeting, however, the above text of Article 29B was strongly opposed, and a delegation submitted an amendment providing for the inclusion of Article 28 of the First Convention (Article 33 of the present Convention), referring to the rights and privileges of retained personnel. A protracted discussion ensued, during which some delegations asserted that the new Article 29B (now Article 33) and Article 30A (now Article 35) of the draft text were incompatible because they contained certain conflicting provisions (see Final Record, Vol. II-B, pp. 282–288). Finally, a working party was instructed to coordinate the two provisions, and they were both adopted at a plenary meeting (see Final Record, Vol. II-B, p. 342) 552 Commentary Article 35 of the Third Geneva Convention, p. 233. 553 Final Record, Vol. II-A, p. 838. 554 Commentary Article 93 of the Fourth Geneva Convention, p. 406.

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9.2 Mandate of the International Religious Organisations International religious organisations advise chaplains/ministers on matters concerning their religious duties (as ecclesiastic authorities).555 But religious organisations can also visit prisoners/internees, distribute to them relief supplies and religious, educational, or recreational material, and assist them in organising their leisure time within the camps.556 Visits to camps enable the organisations not only to give spiritual comfort to prisoners of war, but also to prepare relief action by making all necessary enquiries, to assist in distribution, and to check the use of relief supplies distributed.557 The relief which may be distributed to prisoners of war includes foodstuffs, clothing, medical supplies, and articles of a religious, educational, or recreational character (books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits, and materials that allow prisoners of war to pursue their studies or their cultural activities).558 10

Organisations Duly Approved by the Parties to the Conflict

The term “any other organisation duly approved by the Parties to the conflict” is cited in the Third and Fourth Geneva Conventions. These organisations are therefore mentioned only in provisions covering international armed conflicts. Article 75 of the Third Geneva Convention states that “the Protecting Powers concerned, the ICRC, or any other organization duly approved by the Parties to the conflict may undertake to ensure the conveyance” of shipments to prisoners of war. The text was drafted in such a way as to permit action by all those who may be able to assist. The term might in the first place apply to “any other organisation assisting prisoners of war,” whether national or international.559 It might also apply to an organisation whose normal activities do not include providing assistance to prisoners of war, such as a State agency or even a purely commercial private firm. During the Diplomatic Conference, 555 See Article 35 of the Third Geneva Convention and Article 93 of the Fourth Geneva Convention. 556 Article 125 of the Third Geneva Convention and Article 142 of the Fourth Geneva Convention. 557 Commentary Article 125 of the Third Geneva Convention, p. 597 and Commentary Article 142 of the Fourth Geneva Convention, p. 562. 558 Commentary Article 125 of the Third Geneva Convention, p. 598 and Commentary Article 142 of the Fourth Geneva Convention, p. 562. 559 See the commentary on Article 125, as cited in Chapter 3.

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the ICRC delegate explained that the words “any other body duly approved by the belligerents” were used in this paragraph instead of the expression “any other body assisting the prisoners” because it had been felt that the transport of relief shipments might be entrusted to technical, and not merely to humanitarian, organisations and that the term “any other body assisting the prisoners,” which was used in Article 125, was in fact merely an amplification of the term “relief societies” which appeared in the 1929 Conventions.560 Similarly, Article 111 of the Fourth Geneva Convention provides that “the Protecting Powers concerned, the ICRC, or any other organization duly approved by the Parties to the conflict may undertake the conveyance” of the mail and relief shipments to internees. During the discussions at the Geneva Conference, some delegations wanted the ICRC to be the only organisation mentioned apart from the Protecting Power.561 In particular, the delegate from the United Kingdom explained that the ICRC, in view of its extensive past experience, should have the benefit of advantages that could not be granted to organisations about which little was known and which did not for that reason offer the same safeguards. But this proposal was rejected.562 The Drafting Committee modified this expression, replacing the original drafting of “body” with “organisation” and “belligerents” with “Parties to the conflict.”563 The Commentary on the Fourth Geneva Convention states that the term is similar to the term “any other organisation giving assistance to internees” found in Article 109 concerning collective relief shipments.564 The organisation must be “duly approved” by the powers concerned. Such approval may be implicit if, at the outbreak of hostilities, a particular society has been granted general authorisation to operate in the territory of a particular power; in individual cases, however, it may also be given to an organisation set up in order to provide special means of transport.565 To conclude, it can be argued that the term “any other organisation duly approved by the Parties to the conflict” can be a substitute for the terms “relief societies,” “aid societies,” or “other organisations assisting the prisoners of war,” as their main requirements are to have been approved and to have relief activities.

560 561 562 563 564 565

Final Record, Committee II, Vol. II-A, p. 287. Ibid., Vol. II-A, p. 730. Ibid., Committee III, Vol. II-A, pp. 683 and 730. Ibid., Drafting Committee, Vol. II-B, p. 201. Commentary Article 111 of the Fourth Geneva Convention, p. 466. Commentary Article 75 of the Third Geneva Convention, p. 371.

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Social or Cooperative Organisations

Article 53 of the Fourth 1949 Geneva Convention specifies that “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” These organisations are therefore only mentioned in provisions covering international armed conflicts. This Article is new and was not in the Stockholm draft. The text was proposed by the majority of the drafting Committee at the 1949 Diplomatic Conference. This Article incorporates the principle previously expressed in the second paragraph of draft Article 33.566 The Committee felt that the prohibition of destruction of property was appropriate to occupied territory rather than to the territory of a party to the conflict; therefore, it included this terminology in Part III, section III of the Convention dealing with occupied territory, and it has extended the definition of property to cover property belonging individually or collectively to private persons, or to the State, or to social or cooperative organisations. The wording was slightly modified by the Soviet Delegation.567 The extension of protection to public property and to goods owned collectively reinforces the rule already laid down in The Hague Regulations, Articles 46 and 56, according to which private property and the property of municipalities and of institutions dedicated to religion, charity and education, and the arts and sciences must be respected.568 12

Organisations Engaged in the Task of Reuniting Families

These organisations are mentioned in the Fourth Geneva Convention and Protocol I, and are therefore in provisions covering international armed conflicts. Article 26 of the Fourth Geneva Convention states that “each Party to the conflict shall facilitate enquiries made by members of families dispersed owing to the war . . . It shall encourage, in particular, the work of organizations 566 This sentence read as follows: “Any destruction of personal or real property which is not made absolutely necessary by military operations, is prohibited, as are likewise any measures of intimidation or terrorism.” 567 Final Record, Committee III, Vol. II-A, pp. 719–721 and 829. 568 Commentary Article 53 of the Fourth Geneva Convention, p. 301.

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engaged on this task, provided they are acceptable to it and conform to its security regulations.” The draft Article 26 mentioned only “the work of agencies engaged on this task.” The delegate from the United Kingdom proposed a modification to this text, which provided that the agencies engaged in the reunion of dispersed families must be acceptable to the party to the conflict concerned and must conform to its security regulations. He added that it was essential that organisations responsible for the reunion of dispersed families should be prevented from playing a political role outside of their humanitarian functions. This proposal was adopted.569 The word “agencies” was ultimately replaced with “organisations” by the Drafting Committee.570 Since the Second World War, the reunion of dispersed families has become a major concern of humanitarian organisations.571 For example, the ICRC created the Central Tracing Agency, which has now become a permanent organisation. In addition, in 1943, the Allied authorities set up a tracing organisation for collecting documentation on missing persons and dispersed families. In 1947, this organisation received the name of the International Tracing Service (ITS) and, in 1948, it was established in Arolsen. In 1955, the Allied authorities entrusted the management and administration of this service to the ICRC under an international agreement.572 Article 26 has been frequently invoked by organisations devoted to the reunion of dispersed families, particularly by the ICRC. However, in 1976, the NGOs concerned considered that, on the occasion of the adoption of the Protocol, it would be appropriate to go further by urging governments to facilitate the reunion of families. Thus, the ICRC and the IFRC, with the support of the UNHCR, agreed on a text and succeeded in persuading several governments to submit it as a new Article numbered 64 bis. This led to modification CDDH/III/ 329, submitted by 28 governments; Committee III adopted it by consensus without any change, and it was also adopted by consensus in plenary. Thus, it has become Article 74 of the Additional Protocol I. Article 74 mentions that “the High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordance with the provisions of the Conventions and of this Protocol, and in conformity with their respective security regulations.” The second part of the Article merely 569 570 571 572

Final Record, Committee III, Vol. II-A, p. 638 and 711. Final Record, Drafting Committee, Vol. II-B, p. 191. Commentary Article 74 of the Additional Protocol I, p. 857. Ibid., p. 858.

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reiterates that the organisations concerned must act in accordance with the provisions of the Geneva Conventions and of this Protocol. Reference should be made in particular to Article 81 of Protocol I, which states that the High Contracting Parties and the parties to the conflict shall grant the necessary facilities to the humanitarian organisations referred to in the Conventions and this Protocol, provided that they are duly authorised by the respective parties to the conflict and perform their humanitarian activities in accordance with the provisions of the Conventions and this Protocol.573 The organisations engaged in the task of family reunion are therefore humanitarian organisations that have been approved by parties to the conflict and that act in conformity with their respective security regulations in reunifying families dispersed by the war. 13

Organisations Assisting the Protected Persons

The “organisation that might assist them” (the protected persons),574 “other organisations assisting the protected persons,”575 and the “civilian bodies exclusively engaged in protecting and assisting the civilian population in case of attack”576 are mentioned in provisions covering only international armed conflicts. Article 30 of the Fourth Geneva Convention specifies that “protected persons shall have every facility for making application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion, and Sun) Society of the country where they may be, as well as to any organization that might assist them.” The Article should be read in conjunction with Article 142, which establishes the status of relief organisations and other bodies.577 As the Rapporteur of Committee III of the Diplomatic Conference pointed out, “It is not enough to grant rights to protected persons and to lay responsibility on the States: protected persons must also be furnished with the support they require to obtain their rights.”578 The National Societies of countries other than those in which the protected persons are living are included among such organisations. 573 574 575 576

Ibid., p. 859. Article 30 of the Fourth Geneva Convention. Article 142 of the Fourth Geneva Convention. Article 12 of the 1956 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War. 577 Commentary Article 30 of the Fourth Geneva Convention, p. 213. 578 Final Record, Vol. Il-A, p. 822.

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The Diplomatic Conference refrained from making the assistance of such organisations subject to any condition, other than that of being capable of assisting those who ask for their help.579 These organisations can be national or international.580 Article 142 of the Fourth Geneva Convention mentions “the representatives of religious organizations, relief societies, or any other organizations assisting the protected persons.” These organisations were not mentioned in draft Article 142. They were added by a proposal offered by the Holy See (originally as “any other body assisting the protected persons”).581 The Drafting Committee then replaced “bodies” with “organisations.”582 The article also states that “such societies or organizations may be constituted in the territory of the Detaining Power, or in any other country, or they may have an international character.” The term includes institutions that provide relief to war victims of a public or semi-public character but are not relief societies. The wording is designed to be applicable to bodies whose principal and long-term purpose is not assistance to civilians, but which, during a conflict, might include such assistance among their tasks; the humanitarian nature of the body may therefore be temporary. Such sporadic activities on the part of an organisation could not be considered as conferring upon it the standing and privileges of a relief society.583 The Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, established by the ICRC in 1956, also states in its Article 12 that “the Parties to the conflict shall facilitate the work of the civilian bodies exclusively engaged in protecting and assisting the civilian population in case of attack.” Such organisations are therefore identified as any organisation willing to help in an international armed conflict. They should be capable of assisting those who ask for their help and can be national or international.

579 580 581 582 583

Final Record, Vol. II-A, pp. 644–645. Commentary Article 30 of the Fourth Geneva Convention, p. 217. Annex No. 373, Final Record, Vol. III, p. 163 and Committee III, Vol. II-A, p. 689. Final Record, Drafting Committee, Vol. II-B, pp. 205–206. Commentary Article 142 of the Fourth Geneva Convention, p. 560.

chapter 4

The Legal Personality of Ngos in International Humanitarian Law: Is That the Question? Certain NGOs like MSF or OXFAM have been recognised by States and/or the doctrine as one or several of the organisations cited in Chapter 3. If existing NGOs are recognised as organisations cited in IHL treaties, can we consider that they have international personality? An entity with an international personality is a “subject of international law so as itself to enjoy rights, duties or powers established in international law, and, generally, the capacity to act on the international plane either directly, or indirectly through another State.”1 Therefore, through legal personality an entity can possess legal rights and obligations enforceable by law.2 Generally legal scholars do not agree on the general features and consequences of international legal personality for entities other than States.3 It is a concept “giving rise to controversy.”4 Therefore, the recognition of NGOs as organisations cited in IHL treaties as well as the development of the concept of international personality, its applicability to NGOs acting in armed conflicts, and possible consequences for NGOs, are examined below.

1 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, Peace, Vol. I, ninth edition, Longman, London, 1992, pp. 119–120, para. 33; Ian Brownlie, Principles of Public International Law, fifth edition, Oxford University Press, Oxford, 1998, p. 57; Karsten Nowrot, “Legal Consequences of Globalization: The Status of Non-Governmental Organizations Under International Law,” Indiana Journal of Global Legal Studies, Vol. 6, 1998–1999, p. 621. 2 Anna-Karin Lindblom, “Non-Governmental Organizations and Non-State Actors in International Law,” in Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, p. 148. 3 For a summary of the various views of the literature on this topic, see Robert Kolb, Nouvelle observation sur la détermination de la personnalité juridique internationale, Zeitschrift fur offentliches Recht, Springer-Verlag, 2002, pp. 229–241 and Roland Portmann, Legal Personality in International Law, Dissertation of the University of Saint Gallen, No. 3551, DifoDruck GmbH, Bamberg, 2009. 4 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Reports, p. 178.

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Recognition of Existing NGOs as Organisations Cited in IHL Treaties

This section examines if, after the adoption of the 1949 Geneva Conventions and 1977 Additional Protocols, States recognised certain NGOs (like MSF) as the organisations cited in IHL treaties. Subsequent practise is useful to interpret the provisions of a treaty,5 provided it is consistent, and is common to, or accepted by, all of the parties.6 The views of the academic literature and the NGOs themselves, although not constitutive in terms of treaty interpretation, are considered as an additional indication, as they can influence the opinio juris of States. 1.1 NGOs as “Impartial Humanitarian Bodies/Organisations” Numerous NGOs argue that they are “impartial humanitarian bodies,”7 or “impartial humanitarian organisations.”8 For example, the organisation Geneva Call defines itself as “an international humanitarian organisation”9 and argues that it respects the principles of impartiality and neutrality.10 Geneva Call has also argued that it is an “impartial humanitarian body” according to Article 3 common of the Geneva Conventions.11 Mines Advisory Group declares itself to be “a neutral and impartial humanitarian organisation clearing the remnants of conflict.”12 Action contre la faim states in its Charter that it is “a neutral, impartial, independent, non-political, non-religious, and non-profit international humanitarian organisation.”13 Médecins sans Frontières also considers itself to be “an impartial humanitarian body.”14 Likewise, the organisation 5 6 7 8 9 10 11 12 13 14

See the US-France Air Services Arbitration, 1963, reproduced in International Law Review, Vol. 54, p. 303. See Article 31 of the Vienna Convention on the Law of Treaties and the US-France Air Services Arbitration, 1963, reproduced in International Law Review, Vol. 54, p. 303. According to the terms of Article 3 common of the Four 1949 Geneva Conventions. According to the terms of Article 59 of the Fourth Geneva Convention. See www.genevacall.org. See statement of Geneva Call at the Ottawa conference, available at: http://www.apminebanconvention.org. See Geneva Call, Annual Report 2007, 2007, p. 38, available at: www.genevacall.org. See http://www.maginternational.org/. See http://www.actioncontrelafaim.org/. See for example La Mancha Agreement: “By recognizing the risk inherent to our activities, we commit to reducing this risk, mainly by seeing to it that our presence—as an impartial humanitarian organization—and our actions are accepted,” adopted at a MSF Conference: MSF, Report of the Board, Médecins sans Frontières Switzerland, 2005–2006,

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Concern has claimed to act in complex emergency and conflict situations as an impartial humanitarian body, on the basis of Common Article 3 of the Four Geneva Conventions.15 Some NGOs state that they are humanitarian and impartial, thus invoking the principles without claiming to be “an impartial humanitarian body,” according to the terms of the Geneva Conventions and Additional Protocols. For example, the principles of humanity, neutrality, and impartiality have been retained as the basis for codes of conduct such as the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, which has been agreed to by ICRC, the Federation, and other NGOs such as CARE, OXFAM , and the World Council of Churches. It is not clear, however, if these statements by NGOs have been accepted by States. Only one State has shed light on which NGOs can be identified as an “impartial humanitarian body.” The US Department of Defense includes in its definition of non-governmental organisation16 the “international humanitarian organisations” mentioned in the Geneva Conventions. These “international humanitarian organisations” include the ICRC, Amnesty International, and the National Red Cross and Red Crescent Societies.17

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p. 7, available at: http://www.msf.ch. See also MSF’s website: “MSF is a neutral and impartial humanitarian organisation, which brings medical assistance to all people in need, regardless of their race, ethnicity, sex, or religion” (http://www.msf.org). “On the basis of Common Article 3 of the Four Geneva Conventions (1949), in complex emergency and conflict situations, Concern will claim the role of an impartial humanitarian body. In addition, Concern will base its relief operations on the following articles:  In international armed conflict: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War; Additional Protocol I, Articles 70 and 71.  In non-international armed conflict involving official forces and dissident groups: Additional Protocol II, Article 18.  In non-international armed conflict between dissident groups: Common Article 3”: see Concern, Human Rights Policy, Concern Worldwide, March 2002, p. 7, available at: http://www.concern.net/. The Definition of the Department of Defence is a “transnational organization of private citizens that maintain a consultative status with the Economic and Social Council of the U.N. [They] may be professional associations, foundations, multinational businesses, or simply groups with a common interest in humanitarian assistance activities (development and relief)”: Joint Publication 3-07, Joint Doctrine for Military Operations Other Than War IV-7, 16 June 1995, available at: http://smallwarsjournal.com/, p. GL-4. Joint Publication 3-08, Interagency Coordination During Joint Operations, 9 October 1996, Vol. I, II-18. See Walter Gary Sharp Senior (ed.), UN Peace Operations: A Collection of Primary Documents and Readings Governing the Conduct of Multilateral Peace Operations, American Heritage Custom Publishing Group, New York, 1995, p. 404. See also Major Lisa

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National Societies, the Federation and the ICRC are “impartial humanitarian bodies” according to IHL treaties. This analysis has been accepted within the academic literature and by States.18 The ICRC has also been acknowledged as such in several resolutions of the Security Council.19 Scholars have stated that NGOs can be “impartial humanitarian bodies.” For example, the academic literature identified CARE, OXFAM,20 and MSF21

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L. Turner and Major Lynn G. Norton, “Civilians at the Tip of the Spear,” Air Force Law Review, 2001, p. 16. See, for example, Howard S. Levie, “International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply,” American Journal of International Law, Vol. 67, 1973, p. 700 (acknowledging that a National Society can be recognised as an “impartial humanitarian organisation”). The scholars citing the ICRC as a model of “impartial humanitarian body” are too numerous to be cited here. See, for example, Tom Farer, “IHL and Armed Conflicts: Towards the Definition of “International Armed Conflict,” Columbia Law Review, Vol. 71, 1971, p. 39; George A. B. Peirce, “Humanitarian Protection for the Victims of War: The System of Protecting Powers and the Role of the ICRC,” Military Law Review, Vol. 90, 1980, pp. 117 and 147; Antonio Cassese, “The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts,” International and Comparative Law Quarterly, Vol. 30, 1981, pp. 420–421; Holly Cullen and Karen Morrow, “International Civil Society in International Law: The Growth of NGO Participation,” Non-State Actors and International Law, Vol. 1, 2001, p. 16; Michel Deyra, “Initiative, Assistance, Ingérence: tentative de clarification de concepts parfois galvaudés,” Revue québécoise de droit international, Vol. 8, 1993–1994, p. 89; Pierre Bringuier, “A propos du droit d’initiative humanitaire du Comité International de la Croix Rouge et de tout autre organisme humanitaire impartial,” International Geneva Yearbook, 1990, Vol. IV, p. 99. “The Security Council, (. . .) Calls on the international community also to provide immediate humanitarian assistance to the people of Iraq, (. . .) and supports the activities of the ICRC and of other international humanitarian organizations”: Security Council Resolution 1472 on the Situation between Iraq and Kuwait, 28 March 2003. See also “The Security Council, (. . .) Further demands that relevant international humanitarian organizations, and in particular, the ICRC, be granted immediate, unimpeded and continued access to camps, prisons and detention centres within the territory of the former Yugoslavia”: Security Council Resolution 771, 13 August 1992. For other UN documents, see Chapter 5. “One example of an impartial humanitarian organization is OXFAM, which is dedicated to fighting poverty and related injustice around the world (. . .). Other examples are CARE and MSF”: Jennifer R. White, “IEPPA’s Override Authority: Potential for a Violation of the Geneva Conventions’ Right to Access for Humanitarian Organizations?” Michigan Law Review, Vol. 104, August 2006, p. 2028, footnote 53. Donat Pharand states that Médecins sans Frontières find a legal basis for their assistance in Protocol I, since Article 81 of Protocol I refers to “humanitarian organisations”: Donat Pharand, “Perspectives on Sovereignty in the Current Context: A Canadian Viewpoint,” Canadian United States Law Journal, Vol. 20, 1994, pp. 30–31. See also Jennifer R. White,

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as such. The Catholic Relief Services has also been accepted as an “impartial humanitarian organisation” by scholars because it “prefers to assist victims on both sides of the conflict unless needs on one side are met by other groups or unless operational considerations preclude working on both sides.”22 Another author stated that the following organisations can fulfil the criteria of impartial humanitarian bodies: the ICRC, the National Societies, the IFRC, the Order of Malta, the Ecumenical Council of Churches, Caritas, and MSF.23 Professor Falk argued in 1973 that the release of prisoners of war for repatriation during the course of hostilities in Vietnam to an ad-hoc “impartial humanitarian body” and “humanitarian s”24 constituted a valid and forwardlooking interpretation of the provisions of the Third Geneva Convention. This organisation was named the Committee of Liaison with Families of Servicemen detained in North Vietnam, and it consisted of individuals who were opponents of the United States’ participation in those hostilities.25 Howard S. Levie rejected this argument. For him, the Committee was not an “impartial humanitarian organisation” because, first, it was not impartial in its operations; secondly, it was not really humanitarian in concept and function; thirdly, it did not prove to be an efficient organisation; and fourthly, it

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“IEPPA’s Override Authority: Potential for a Violation of the Geneva Conventions’ Right to Access for Humanitarian Organizations?” op. cit., p. 2022, footnote 20 and p. 2028, footnote 53. Larry Minear and Thomas G. Weiss, Humanitarian Action in Times of War: A Handbook for Practitioners, Lynne Rienner, Boulder, 1993, p. 24. See also Surabhi Ranganathan, “Reconceptualizing the Boundaries of Humanitarian Assistance: The Importance of Being ‘Earnest’.” John Marshall Law Review, Vol. 40, 2006, p. 221. Karl Josef Partsch, statement in UNESCO (ed.), Le droit à l’assistance humanitaire, Actes du colloque international organisé par l’UNESCO, Paris, 23–27 janvier 1995, UNESCO, Paris, 1996, p. 141. On 2 September 1972, the North Vietnamese Foreign Ministry issued a statement announcing the release of three American pilots who were held in detention since their capture in North Vietnam. The statement indicated that the pilots would be released to “a US social organisation animated with goodwill and a desire to bring about an early end to the US war in Vietnam and to help those released not to be used in activities against the Vietnamese people and the Government of the Democratic Republic of Vietnam.” For Falk, it had a humanitarian purpose, in the terms of articles 9 and 10 common of the 1949 Geneva Conventions (disseminate its views on conditions in camps and support the repatriation of prisoners). In addition, for him, the consent of the US government was not necessary, since the Government did not really object to the activities of the Committee. The consent of the North Vietnam authorities to the activities of the Committee was sufficient: Richard A. Falk, “International Law Aspects of Repatriation of Prisoners of War During Hostilities,” American Journal of International Law, Vol. 67, 1973, pp. 465–478.

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did not have an institutional, operational, and functional resemblance to the ICRC.26 David E. Graham also rejected Falk’s argument for two reasons. Firstly, Article 109 of the Third Geneva Convention was not applicable, since there were no agreements contracted between the parties for the repatriation of the prisoners. Secondly, the Committee did not formally obtain the consent of the US authorities or of the North Vietnam authorities, and it was not an impartial organisation.27 The ICRC also gave examples of NGOs fitting the definition. At the 1974– 1977 Diplomatic Conference, for the discussion on draft Article 5 of Protocol I that refers to “an impartial humanitarian organisation” as a substitute of the Protecting Powers, the ICRC delegate prepared a list of bodies which have supervised the application of the law of armed conflict. This list included, among others, Amnesty International, the Commission médico-juridique de Monaco, the International Commission of Jurists, the International Committee of Military Medicine and Pharmacy, the International Law Association, and the World Veterans Federation.28 However, academic literature has rejected the possibility of an individual being recognised as an “impartial humanitarian organisation.”29

26

Howard S. Levie, “International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply,” op. cit., pp. 702–710. 27 David E. Graham, “Repatriation of Prisoners of War during Hostilities—A Task Unsuited for the Private Citizenry,” International Lawyer, Vol. 8, No. 4, pp. 832–858. 28 ICRC, Documents for the Conference of Government Experts on the Reaffirmation and Development of IHL Applicable in Armed Conflicts, Geneva, 24 May–12 June 1971, Measures intended to reinforce the implementation of the existing law, Submitted by the ICRC, Document CE/2b, Geneva, January 1971, p. 22, note 55. 29 See the discussions between Richard A. Falk, Howard S. Levie, and David E. Graham on this topic (Falk being in favor of this recognition as an “impartial humanitarian organization” for Ross Perot’s activities in Vietnam, and Levie and Graham being against): Richard A. Falk, “International Law Aspects of Repatriation of Prisoners of War During Hostilities,” op. cit., p. 474; Howard S. Levie, “International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply,” op. cit., p. 700; David E. Graham, “Repatriation of Prisoners of War during Hostilities—A Task Unsuited for the Private Citizenry,” op. cit., pp. 706 and 849. During the Vietnam War, the US millionaire Ross Perot tried to improve the treatment of American prisoners of war in North Vietnam. In December of 1969, Perot attempted to send two planeloads of food, gifts, and medical supplies to the prisoners. The Vietnamese refused to accept delivery of the goods, but the publicity surrounding the episode may have led to improved conditions in the prison camps.

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1.2 NGOs as “Relief Societies” Certain international NGOs and National Societies have claimed to be “relief societies.” In fact, a number of National Societies refer to themselves as a “relief society,” using the terminology of the earlier Geneva Conventions.30 Moreover, the NGO Concern has claimed to act according to the provisions of Articles 70 and 71 of Protocol I and Article 18 of Protocol II.31 These provisions relate to relief societies and relief actions. The academic literature has also clarified which NGOs fulfil the definition of a “relief society.” Scholars have included among NGOs that fulfil this definition32 MSF and Health Unlimited.33 It has also included in this category National Societies, the Sovereign Order of Malta, and the Order of St. John of Jerusalem.34 The United States has further clarified this notion. A number of NGOs worked aboard US Navy hospital-ships during deployments in 2005: Project HOPE, the Aloha Medical Mission, the International Relief Team, and Save the Children. These NGOs operate white-hulled “mercy ships” in the waters of developing countries and provide medical care to those in need. The ships do not bear red crosses, but in other respects, they look similar to military medical 30

31

See, for example, the websites of the Hong Kong National Society (http://www.redcross. org.hk); American National Society (http://www.redcross.org/faq) or the Kenyan National Society (http://www.kenyaredcross.org). In addition, in 1909, the Canadian Parliament passed The Canadian Red Cross Society Act, legally establishing the Canadian Red Cross as the body responsible for providing volunteer aid and the “relief societies” in Canada in accordance with the First Geneva Conference on 1863: Canadian Red Cross, Toward a Renewed Canadian Red Cross: Forging Stronger Partnerships in Support of a Humanitarian Agenda, 2007, available at: http://www.redcross.ca/. “Concern will base its relief operations on the following articles:  In international armed conflict: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War; Additional Protocol I, Articles 70 and 71.  In non-international armed conflict involving official forces and dissident groups: Additional Protocol II, Article 18”: see Concern, Human Rights Policy, Concern Worldwide, op. cit., p. 7. In particular, Article 21 of the Second Geneva Convention refers to “relief societies” who are permitted, “even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.” Michael A. Meyer, “Humanitarian action: A delicate Balancing Act,” International Review of the Red Cross, September–October 1987, No. 260, p. 487. The category includes specifically “officially recognized relief societies which provide hospital ships during armed conflict at sea, relief societies which assist civilian detainees or internees, and relief societies which serve the inhabitants in occupied territory”: Michael A. Meyer, “Humanitarian action: A delicate Balancing Act,” op. cit., pp. 488–489.

• •

32

33 34

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ships.35 These ships, according to the US Navy, are based on the provisions of the Second Geneva Convention and Additional Protocol I, which made provisions for hospital-ships owned or operated by neutral States, private citizens, officially recognised relief societies, and impartial international humanitarian organisations.36 Other organisations, such as Mercy Ships, could also qualify under these provisions, if acting in times of armed conflict, according to the US Navy.37 The Order of Malta38 and the ICRC39 have also been recognised as “relief societies” by States. 1.3 NGOs as “Organisations Assisting Prisoners of War” Although organisations such as Amnesty International have worked on questions relating to the treatment of prisoners of war, they have not been accepted as “organisations assisting prisoners of war” within academic literature because normally, they have not carried out the specific activities referred to in the Third Geneva Convention.40

35 36 37

See http://www.globalsecurity.org/. Articles 24–25 of the Second Geneva Convention and Article 22(2) of Protocol I. Mercy Ships is a global charity operating hospital ships since 1978 in developing nations to bring medical, relief, and developmental assistance to the poor and needy in third-world developing nations. It operates hospital ships as a platform for providing thousands of specialised surgeries to patients in the developing world. Founded in 1978, the organisation serves all people, regardless of race, religion, gender, or ethnic or national background. See http://www.globalsecurity.org/. 38 See Actes de la Conférence diplomatique convoquée par le Conseil Fédéral suisse pour révision de la Convention pour l’amélioration du sort des blessés et malades dans les armées, Genève, 1929, pp. 62–64, 133, 367–378, 414–415 and 606; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II A, pp. 20, 21, 37, 78 and Vol. II B, pp. 492–495. See also Arthur C. Breycha-Vauthier and Michael Potulicki, “The Order of Saint John in International Law, A Forerunner of the Red Cross,” American Journal of International Law, Vol. 48, 1954, p. 558. 39 In A Memory of Solferino, Dunant made two suggestions: i) that relief societies should be established in peace time, to support the medical services of the armed forces in time of war. ii) that States should conclude an international convention under which the neutrality of such relief societies would be guaranteed. Influenced by Dunant’s writing, the Swiss government formed in 1863 the International Standing Committee for Aid to wounded Soldiers, which became known as the ICRC from 1880: see Stanislaw Nahlik, “A Brief Outline of IHL,” International Review of the Red Cross, Vol. 281, July–August 1984, p. 7. 40 Allan Rosas, The Legal Status of Prisoners of War, A Study in IHL Applicable in Armed Conflicts, Suomalainen Tiedeakatemia, Helsinki, 1976, pp. 467–468.

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Scholars have however implicitly included amongst the “organisations assisting prisoners of war” NGOs that visit prisoners of war and provide relief to them. In certain conflicts, these activities have been handled by National Societies41 or some other national body.42 Moreover, one academic classified among the “relief societies which help prisoners of war” the National Societies, the Sovereign Order of Malta, and the Order of St. John of Jerusalem.43 During the Second World War, the Young Men’s Christian Association and the National Catholic Welfare Conference were permitted to supplement the humanitarian work of the ICRC on behalf of prisoners of war held in the United States.44 For Howard S. Levie, some of these organisations might, upon closer examination, qualify under Article 9 of the Third Geneva Convention, which stipulates the role that an “impartial humanitarian organisation” plays in favour of prisoners of war. The reason is that such organisations offered humanitarian assistance to all enemy prisoners of war, without regard to their origin, nationality, or religion.45 This is consistent with the view of the delegate from Venezuela at the 1949 Diplomatic Conference.46 41

42

43 44 45 46

In the conflict of 1962 between China and India, the Chinese and Indian Red Cross Societies established contact with respect to lists and correspondence of prisoners of war: International Review of the Red Cross, No. 3, 1963, p. 16. In the Vietnam War, the Committee of Liaison with Families of Servicemen Detained in North Vietnam supported captured American military personnel: United States Congress, House of Representatives, Hearings on American Prisoners of War in Southeast Asia, Part 1, 1971, p. 231. Israeli prisoners in Syria in 1973–1974 were visited by representatives of a religious organisation: see a letter from the permanent representative of Syria to the UN Secretary General, UN Doc. S/11533, p. 2. In the Dominican conflict prisoners were visited by the Inter-American Commission on Human Rights and in the Nigerian War by an International Observer Team: Dietrich Schindler, “Das humanitare Kriegsrecht im Rahmen der internationalen Garantie der Menschenrechte”, in Internationales Colloquim über Menschenrechte, Berlin, 1968, pp. 43 and 52; Jacques Moreillon, Le Comité international de la Croix-Rouge et la protection des détenus politiques, Editions l’Age d’Homme, Lausanne, 1973, pp. 226–228; Kungl. Utrikesdepartementet, Sverige och konflikten i Nigeria, Aktstycken, 1970, pp. 158–245. Michael A. Meyer, “Humanitarian action: A delicate Balancing Act,” op. cit., pp. 488–489. U.S. Army Office, Provost Marshal General, World War II: A Brief History, Report, Mimeo, 1946, pp. 489–491. Howard S. Levie, “International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply,” op. cit., p. 699. He implied that these societies during the last war included the Roman Catholic relief societies and the Young Men’s Christian Association: see Final Record, Committee II, Vol. II-A, pp. 298–299.

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1.4 NGOs as “Civil Defence” The Government of New Zealand recognised several NGOs performing tasks of civil defence in the country: the New Zealand Red Cross, St. John, and locallybased voluntary organisations.47 The British Government also included in its British Civil Defence Team several “Non-Government Humanitarian Aid and Civil Defence/Protection Agencies.”48 The organisations of civil defence in Switzerland similarly include the Swiss Red Cross and NGOs such as the Swiss Disaster Dog Association.49 Similar attitudes were adopted by other countries, including Sweden,50 Poland,51 and Australia.52

47 48 49 50

51

52

New Zealand Ministry of Civil Defence and Emergency Management, National Welfare Support Arrangements, 2006, available at: http://www.civildefence.govt.nz. See http://www.britishcivildefence.org. See http://www.bevoelkerungsschutz.admin.ch. See, for example, the description of civil defence on the website of the State in Sweden: “Civil defence embraces the whole of society including all the services that need to function in times of crisis and war, such as health care, rescue services, and the electricity and water supply. (. . .) Many companies and other organisations all have important roles to play in the civil defence sector. Civil defence is not an organisation; it consists of a diverse range of activities conducted by society to strengthen the ability to cope with a state of heightened alert and war. (. . .) Civil defence embraces all non-military activity by society, which is to take place in war,” available at: http://www.sweden.gov.se/. See the statement regarding civil defence made on the website of the Polish government: “A precise specification of civil defence tasks is included in the First Additional Protocol to Geneva Conventions of 12 August 1949 concerning protection of victims of international military conflicts, signed in Geneva on 8 June 1977 (Journal of Laws of 1992, No. 41, Item 175) and adopted by the Republic of Poland on 19 September 1991. (. . .) Thus, work started on the draft of the act on protection of society and civil defence, which shall put in order competences and tasks of all public administration authorities, public institutions, social organisations, and other units obliged to carry out tasks in the area of civilian protection,” available at: http://www.ock.gov.pl. See the statement regarding civil defence made on the website of the Australian government: “Australia’s ratification of the 1977 Protocols Additional to the Geneva Conventions of 1949 means that the definition of civil defence which appears in Article 61 of Protocol 1 applies to Australia for the purposes of international law. (. . .) Australia’s emergency management agencies, including fire, police, ambulance, and State Emergency Services, constitute the core of what would become Australia’s civil defence structure during time of conflict. (. . .) Other government and non-government agencies responsible for functions such as medical, welfare, engineering, gas, electricity, water supply, and communication networks are involved in civil defence and may also require augmentation,” available at: http://www.ema.gov.au.

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Other organisations identified by the academic literature as organisations that have been able to perform civil defence tasks during the Second World War include, in Britain, the National Society of the Red Cross, St. John’s Ambulance, and the Women’s Royal Voluntary Service.53 1.5 NGOs as “Medical Personnel” In several conflicts MSF has argued that its medical staff is part of the “medical personnel,” according to the terms of IHL treaties.54 The academic literature has indeed accepted among the organisations that can be identified under Articles 15 and 16 of Additional Protocol I (regarding civilian medical personnel) MSF and Health Unlimited.55 1.6 NGOs as “Voluntary Aid Societies” The academic literature has cited the National Societies, the Order of Malta and the Order of St. John of Jerusalem as examples of “voluntary aid societies which assist the medical services of the armed forces.”56 This is consistent with the views of States at the 1929,57 1946,58 and 194959 Diplomatic Conferences. Conclusion on the Recognition of Existing NGOs as Organisations Cited in IHL Treaties There is little documentary evidence of States recognising existing NGOs such as MSF as organisations cited in IHL treaties. Similarly, the academic literature has never really examined this issue, and only a few scholars have considered NGOs other than the ICRC and the National Societies in international armed conflicts. It is true, however, that such State practise would be very difficult to find, for two reasons. Firstly, NGOs claim to be organisations recognised in IHL 1.7

53 54

55 56 57 58 59

Lexa Hilliard, “Local Government, Civil Defence and Emergency Planning: Heading for Disaster,” Modern Law Review, Vol. 40, July 1986, p. 482. Francoise Bouchet-Saulnier, “Coutume: espace de création et d’activisme pour le juge et pour les organisations non gouvernementales,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, Bruylant, Bruxelles, 2008, p. 169. Michael A. Meyer, “Humanitarian action: A delicate Balancing Act,” op. cit., p. 487. Michael A. Meyer, “Humanitarian action: A delicate Balancing Act,” op. cit., pp. 488–489. Final Act of the Diplomatic Conference, Geneva, 27 July 1929, recommendation II. Report on the Work on the Preliminary Conference of National Red Cross Societies, 1946, op. cit., p. 30. Final Record, Committee I, Vol. I, p. 78.

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treaties during their negotiations in armed conflicts, as for example, in their negotiations with rebel groups or army members. Such negotiations take place informally and are not recorded or shared externally. Secondly, humanitarian principles (such as the principle of impartiality) are cited more often by NGOs than the specific provisions of IHL treaties. Such principles are indeed easier to argue in practise. State practise over the last sixty years is therefore not informative when it comes to interpreting the provisions of IHL treaties regarding NGOs and determining which current NGOs can meet the characteristics of the organisations cited in these treaties. 2

International Legal Personality and Its Applicability to NGOs

2.1 Development of the Concept of International Personality In the seventeenth century, Leibniz created the theory of international legal personality.60 It was, however, through the work of Leibniz’s student, Christian von Wolff, and later Emmerich de Vattel, that the concept of international legal personality developed from that of being an individual attribute of the monarch to being an attribute of the State.61 In the twentieth century, many scholars followed this traditional concept; i.e., that only States could have an international legal personality. These scholars included, amongst others: Anzilotti,62 Carreau,63 Henkin,64 Triepel,65 Strupp,66 Erich Kaufmann,67 Robert Redslob,68

60

61 62 63 64 65 66 67 68

Gottfried Wilhelm Leibniz, Codex Juris Gentium Diplomaticus, Hanover, 1693, p. 175, cited in Janne Elisabeth Nijman, The Concept of International Legal Personality, An Inquiry Into the History and Theory of International Law, T.M.C. Asser Press, The Hague, 2004, pp. 58–59. Janne Elisabeth Nijman, The Concept of International Legal Personality, op. cit., p. 110. Dionisio Anzilotti, Cours de droit international, Vol. I, Recueil Sirey, Paris, 1929, pp. 44–52, 123 and 124. Dominique Carreau, Droit international, seventh edition, Pédone, Paris, 2001, paras. 813–816. Louis Henkin, Richard Crawford Pugh, Oscar Schachter, Hans Smit (eds.), International Law Cases and Materials, third edition, West Publishing, St. Paul, 1993, p. 24. Heinrich Triepel, “Les rapports entre le droit interne et le droit international,” RCADI, Vol. 1, 1923, pp. 77–121. Karl Strupp, “Les règles générales du droit international de la paix,” RCADI, Vol. 47, 1934-I, pp. 263–593. Erich Kaufmann, “Règles générales du droit de la paix,” RCADI, Vol. 54, 1935, pp. 313–615. Robert Redslob, Traité de droit des gens, Sirey, Paris, 1950, p. 71.

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Verhoeven,69 Waldock,70 Warbrick,71 most Soviet scholars,72 and Oppenheim.73 This theory is reflected to some extent in the PCIJ decisions of Mavrommatis74 and Lotus.75 This traditional theory was reshaped and contested in the first half of the twentieth century, predominately by James Leslie Brierly,76 Hans Kelsen,77 Georges Scelle,78 Léon Duguit,79 and Nicolas Politis,80 amongst other 69 70 71 72 73 74

75 76

77

78 79 80

Joe Verhoeven, Droit international public, Larcier, Bruxelles, 2000, pp. 49–50. Humphrey Waldock, “General Course on Public International Law,” RCADI, Vol. 106, 1962, pp. 191–211. Colin Warbrick, “States and Recognition in International Law,” in Malcolm D. Evans (ed.), International Law, Oxford University Press, Oxford, 2003, p. 205. Gennady Vladimirovitch Ignatenko, “International Law,” in Grigorii Tunkin (ed.), Juridical Literature, Progress, Moscow, 1982, p. 82. Lassa Oppenheim, “International Law: A Treatise,” in Hersch Lauterpacht (ed.), eighth edition, Longmans, London, 1955, p. 636. The Mavrommatis Palestine Concessions (Greece v. UK), Juridisction, 1924 PCIJ Series A No. 2, p. 12. Although the PCIJ not expressly excluded direct individual rights, it declared that by exercising diplomatic protection a State is asserting its own rights and not the ones of the individual concerned, which has been mostly interpreted in the sense that individuals have no direct rights. See also The Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania), Judgement, 1939 PCIJ Series A/B, No. 76, p. 16; Nottebohm Case (Liechtenstein v. Guatemala), Second Phase (Judgement), 1955 ICJ Reports, p. 24; Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase (Merits), 1970 ICJ Reports, para. 78 (by exercising diplomatic protection on behalf of the shareholders, “it is its own right that the State is asserting”). “International law governs relations between independent States:” Case of the SS Lotus, Judgement, 1927 PCIJ Series A, No. 10, p. 18. James Leslie Brierly, “Règles générales du droit de la paix,” RCADI, Vol. 58, 1936-I, p. 47, cited in Janne Elisabeth Nijman, The Concept of International Legal Personality, op. cit., p. 147. “Cette thèse, acceptée par la plupart des théoriciens du doit international: seuls les Etats sont sujets du droit international, est théoriquement fausse, et même, une fois rectifiée théoriquement, elle reste encore contraire au droit positif :” Hans Kelsen, “Théorie générale du droit international public, Problèmes choisis,” RCADI, Vol. 42, 1932–IV, pp. 145–146. He also stated that: “A norm, a law or an obligation which does not oblige an individual or does not create any rights of an individual, is not obligatory for anything and does not create any rights for anybody:” Hans Kelsen, “Les rapports de système entre le droit interne et le droit international public,” RCADI, Vol. 14, 1926, pp. 310–312. George Scelle, Précis du Droit des Gens, Part I, Sirey, Paris, 1932. Léon Duguit, Etudes de droit public, Vol. I: L’Etat, le droit objectif et la loi positive, Fontemoing, Paris, 1901; Vol. II: L’Etat, les gouvernants et les agents, Fontemoing, Paris, 1903. Nicolas Politis, Les nouvelles tendances du droit international, Hachette, Paris, 1927.

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scholars,81 who argued that only individuals can have an international legal personality. This conception is currently supported by Antonio Augusto Cancado Trindade.82 With this approach, entities like NGOs can obtain international personality without requiring express or tacit agreement by States.83 Whilst along similar lines, other scholars took a more cautious approach, declaring that States remain the primary subjects of the international order, but individuals can also be subjects of international law.84 The main author who expounded this view was Lauterpacht, who considered that States were composed of individuals and therefore all law was ultimately addressed to individual human beings, and hence, the identity of all subjects.85 Jessup followed the same course.86

81

82

83

84

85

86

These scholars include also Gaston Jeze, Krabbe, and James Brown Scott: see Marek St. Korowicz, “The Problem of the International Personality of Individuals,” American Journal of International Law, No. 50, 1956, p. 539. Antionio Augusto Cancado Trindade, “International Law for Humankind: Towards a New Jus Gentium: General Course on Public International Law,” RCADI, Vol. 316, 2005, pp. 9–440. Hersch Lauterpacht, “The Subjects of the Law of Nations,” in Elihu Lauterpacht (ed.), International Law: Being the Collected Papers of Hersch Lauterpacht, Cambridge University Press, Cambridge, 1975, pp. 491 and 532–533. Numerous writers of the nineteenth century [including Hefter, Fiore, Bluntschli, Heilborn, Martens, and Wilhelm Kaufmann] and of the twentieth century [for example, Westlake, De Lapradelle, Le Fur, Renard, Verdross, Ivor Jennings, De Louter, Rundstein, Reeves, Bourquin, Spiropoulos, Brierly, Jacques Dumas, Quincy Wright, Bishop, Accioly, Eustathiades, Charles Fenwick, Hyde, Guggenheim, Pallieri, Sibert, and Jessup] proclaimed the international personality of individuals as well as that of States: see Marek St. Korowicz, “The Problem of the International Personality of Individuals,” op. cit., p. 534. “States are composed of individual human beings; it results from the fact that behind the mystical, impersonal, and therefore necessarily irresponsible personality of the metaphysical State there are the actual subjects of rights and duties, namely, individual human beings. This is the true meaning of the Grotian analogy of States and individuals. The individual is the ultimate unit of all law, international and municipal, in the double sense that the obligations of international law are ultimately addressed to him and that the development, the well-being, and the dignity of the individual human being are a matter of direct concern of international law:” Hersch Lauterpacht, “The Grotian Tradition of International Law,” in Hersch Lauterpacht (ed.), International Law: being the Collected Papers of Hersch Lauterpacht, Vol. 2, 1970–1978, pp. 333–336, cited in Janne Elisabeth Nijman, The Concept of International Legal Personality, op. cit., p. 309. Wolfgang Friedmann, The Changing Structure of International Law, Columbia University Press, New York, 1964, p. 234.

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Another approach is the recognition conception. According to this concept, States can recognise other entities as international persons, while international law is still considered to emanate from State will and is only binding for those States that consented to it.87 The basis for this concept is found mainly in the works of Karl Strupp, Arrigo Cavalieri, and Georg Schwarzenberger, who focused on what they perceived as State practise regarding personality.88 It represents one of the dominant conceptions of international personality today.89 The scope of personality of the entity is here strictly limited to the recognising States and the effect of recognition exists in accordance with the perimeters defined in the act of recognition.90 For NGOs, such recognition has to be exercised by at least two States, one of them being the home State of the organisation (because of the presumption that these organisations naturally belong to the municipal and not the international legal order).91 This conception has been used to justify that the ICRC, the Federation, and the National Societies have international legal personality. The personality of the Order of Malta has been acknowledged for the same reason by Italian courts: because the Order has been recognised as such by States.92 87 88

89

90

91

92

Roland Portmann, Legal Personality in International Law, op. cit., pp. 73–74. Karl Strupp, “Das Völkerrechtliche Delikt,” in Fritz Stier-Somlo (ed.), Handbuch des Völkerrechts, W. Kohlhammer, Berlin, 1920, p. 22; Arrigo Cavaglieri, “Règles générales du droit de la paix,” RCADI, Vol. 26, 1929-I, pp. 319–320; Georg Schwarzenberger, A Manual of International Law, first edition, Stevens and Sons, London, 1947, pp. 25, 27 and 35. Patrick Dailler and Alain Pellet, Droit international public, fifth edition, LGDJ, Paris, 1994, pp. 395 and 551; Knut Ipsen, Völkerrecht, Auflage, München, 2004, pp. 57–58; Robert Kolb, “Une observation sur la determination de la subjectivité internationale,” Zör, Vol. 52, 1997, pp. 120–121; Hermann Mosler, “Subjects of International Law,” EPIL, Vol. 4, 2000, pp. 712– 713; Charles Rousseau, Droit international public, Les sujets de droit, Sirey, Paris, 1974, p. 10; Christian Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law,” RCADI, 2001, p. 160; Ian Brownlie, Principles of Public International Law, sixth edition, Oxford University Press, Oxford, 2003, pp. 57–58. Arrigo Cavaglieri, I soggetti del diritto internazionale, G. Maio, Napoli, 1925, pp. 182–183; Karl Strupp, “Les règles générales du droit de la paix,” RCADI, Vol. 47, 1934(I), p. 421; Georg Schwarzenberger, A Manual of International Law, op. cit., pp. 34–35; Roland Portmann, Legal Personality in International Law, op. cit., p. 72. Arrigo Cavaglieri, I soggetti del diritto internazionale, op. cit., p. 185; Karl Strupp, “Les règles générales du droit de la paix,” op. cit., pp. 466–468; Georg Schwarzenberger, A Manual of International Law, op. cit., p. 35. “As the jurisprudence of this Supreme Court has consistently held in a settled series of cases, the Sovereign Military Order of Malta is a sovereign subject of international law, recognised as such by the other subjects of the international community:” Ministry of

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On the contrary to the recognition perception, the formal conception articulates no presumption for a particular entity to be an international person. Anyone being the addressee of an international norm (right or duty) is an international person. International personality is therefore an a posteriori concept. In principle, there are also no direct legal consequences attached to being an international person.93 This theory has been advocated by Hans Kelsen,94 Paul Guggenheim,95 Daniel O’Connell,96 and Julio Barberis.97 It has been acknowledged by the ICJ in the Lagrand98 and Avena99 cases. In these two cases, the Court looked at the treaty provision in question and interpreted it according to the normal rules of treaty interpretation. With this conception, the State is not a starting point for international law, but statehood is a construct of legal norms and the international legal system determines the existence of a State. In sum, international personality is entirely determined by specific international norms.100 There is now a trend toward a “participant” approach, where the notion of participants is employed instead of actors or subjects. This concept is based Finance v. Association of Italian Knights of the Order of Malta, Court of Cassation of Italy, ILR, 1978, Vol. 65, p. 323. See also Nanni and Others v. Pace and the Sovereign Order of Malta, Court of Cassation of Italy, 1935, in Annual Digest and Reports of Public International Law Cases, Vol. 8, ILR, pp. 4–6. 93 Roland Portmann, Legal Personality in International Law, op. cit., p. 156. 94 “Examinant le domaine de validité personnel du droit international, il convient de se demander pour quels sujets vaut cet ordre, à qui il s’adresse, c’est-à-dire quels sont les sujets dont il règle la conduite, les droits et les devoirs. Nous aurons à montrer qu’à cet égard la validité du droit international ne connaît pas de limites:” Hans Kelsen, “Théorie générale du droit international public,” RCADI, Vol. 42, 1932-V, p. 141. 95 Paul Guggenheim, Lehrbuch des Völkerrechts: Under Berücksichtigung der internationalen und schweizerischen Praxis, Verlag für Recht und Gesellschaft, Basel, 1948, p. 161. 96 Daniel P. O’Connell, “La personalité en droit international,” RGDIP, Vol. 34, 1963, p. 8. 97 Julio A. Barberis, “Nouvelles questions concernant la personalité juridique internationale,” RCADI, Vol. 179, 1983(I), pp. 168–170. 98 The Court held that Article 36.1(b) of the Vienna Convention on Consular Relations “creates individual rights:” LaGrand Case (Germany v. United States), Judgement, 2001 ICJ Reports, para. 77. This decision has been widely interpreted to affirm the position of the individual as a subject of international law: see e.g. Giogio Gaja (Special Rapporteur), First Report on Responsibility of International Organisations, ILC 2003, UN Doc. A/CN.4/532, para. 17. 99 In this case, the Court explicitly reaffirmed its interpretation of Article 36.1(b) of the Vienna Convention on Consular Relations: Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 ICJ Reports, para. 40. 100 Roland Portmann, Legal Personality in International Law, op. cit., p. 187.

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on the fact that we are now in a different era,101 where legal scholars prefer to ignore the concept of legal international personality.102 In fact, the description of the role of non-State actors in international law frequently fails to induce analysis of this concept.103 According to this conception, participants in the international legal system are States, NGOs, international organisations, corporations, and private individuals. These participants all engage in an international activity. Participation depends on the particular area of the international legal system concerned and the activity of the entity in that area, rather than on the determination by States as to whether any other entity are subjects for that purpose. Furthermore, international law is not a set of rules, but an authoritative decision-making process. In this process, participation is not based on legal rules or specific acts of recognition, but on the effective power to participate.104 101 For James E. Hickey, in the last years, there have been dramatic changes in the economic, political, cultural and social world order, reflected in at least six global developments: “First, the disintegration of the Soviet Union in the early 1990’s signaled the end of the political and military “empire” system of world governance—a process that began in earnest at the close of World War II with the movements to replace colonies with independent States. Second, the early 1990’s also signalled the end of the Cold War and an accelerating movement toward global economic integration and political cooperation on regional and global fronts. Third, States increasingly have moved to embrace both democratic forms of government and privatized free market economies. Fourth, the computerized information age has arrived, which has made news and data of every kind and description available instantaneously to an increasing portion of the world’s population. Fifth, the global problems needing global responses have increased dramatically in the last half decade in such areas as crime, energy, the environment, finance, food, human rights, intellectual property, natural resources, and trade, all of which have involved varying degrees of international effort to resolve. Sixth, the number of entities, State and nonState, that have become involved in those global issues has multiplied exponentially and now collectively number in the thousands:” James E. Hickey, “The Source of International Legal Personality in the 21st Century,” Hofstra Law and Policy Symposium, Vol. 2, 1997, p. 2. 102 Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, Oxford, 2006, p. 60. 103 See for example Ruth Wedgewood, “Legal Personality and the Role of Non-Governmental Organisations and Non-State Political Entities in the United Nations System,” in Rainer Hofman and Nils Geissler (eds.), Non-State Actors as New Subjects of International Law: International Law—From the Traditional State Order Towards the Law of the Global Community, Ducker & Humblot, Berlin, 1999. 104 Roland Portmann, Legal Personality in International Law, op. cit., p. 192; Robert McCorquodale, “The Individual and the International Legal System” in Malcolm Evans (ed.), International Law, Oxford University Press, Oxford, 2006, p. 311.

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Applicability of the Concept by the Doctrine to the Movement and NGOs Scholars have used both the recognition and formal conception theories to establish whether the ICRC, Federation, National Societies and NGOs have an international legal personality. 2.2

2.2.1 The Legal Status of the ICRC A number of scholars have argued that the ICRC has an international legal personality.105 They describe it as a sui generis organisation, stating that it is neither an NGO, nor an intergovernmental organisation.106 While its functions 105 Christian Dominicé, “La personnalité juridique internationale du CICR,” dans Christophe Swinarski, (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, Comité international de la Croix-Rouge, Genève/La Haye, 1984, pp. 663–673; Christian Koenig, “Observer Status for the ICRC at the United Nations, A Legal Viewpoint,” International Review of the Red Cross, No. 280, 1991, pp. 37–48; Alejandro Lorite Escorihuela, “Le Comité international de la Croix-Rouge comme organisation Sui Generis? Remarques sur la personnalité juridique internationale du CICR,” Revue générale de droit international public, Vol. 105, 2001, pp. 581–615; Peter Nobel, “The Red Cross—Red Crescent Movement: A Model for Non-State Participation?,” in Theo Van Boven, Cees Flinterman, Fred Grunfeld and Rita Hut (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors, Netherlands Institute of Human Rights, SIM Special, 19, Utrecht, 1997, pp. 77–86; Gabriel Larissa, “The Red Cross—Red Crescent Movement: Is it a Model for Non-State Participation?,” in Theo Van Boven, Cees Flinterman, Fred Grunfeld and Rita Hut (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors, op. cit., pp. 87–91; Paul Reuter, “La personnalité juridique internationale du Comité international de la CroixRouge,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., pp. 783–791; Henry Schermers and Niels Blokker, International Institutional Law, Unity Within Diversity, Martinus Nijhoff Publishers, The Hague, 1999, p. 33; Malcolm Shaw, International Law, Cambridge University Press, Cambridge, 1997, p. 192; Christian Dominicé, “L’accord de siège conclu par le Comité international de la Croix-Rouge avec la Suisse,” Revue générale de droit international public, 1995, pp. 5–36; Guiseppe Barile, “Caractère du Comité international de la Croix-Rouge,” Rivista di Diritto Internazionale, Vol. 62, 1979, pp. 111–115; Denise Bindschedler-Robert, “Red Cross,” in Encyclopedia of Public International Law, North Holland, Amsterdam, 1983, Vol. 5, p. 255; Pierre-Marie Dupuy, Droit international public, Dalloz, Paris, 1993, p. 186, para. 236; Hermann Mosler, “Subjects of International Law,” in Encyclopaedia of Public International Law, North Holland, Amsterdam, 1983, Vol. 7, p. 455; Paul Guggenheim, Traité de droit international public, Georg, Geneva, 1953, p. 289; Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law, op. cit., pp. 38–41. 106 The terms “international organisation” and “intergovernmental organisation” denote an association, established by States through a treaty, which pursues common aims and has

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are mandated by the international community of States and its activities are regulated by public international law, they feel the ICRC has a hybrid nature since it is a private association formed under the Swiss Civil Code.107 In fact, the role of the ICRC has been recognised by State parties to humanitarian law treaties citing the organisation.108 Such recognition took place in resolutions of the International Conferences of the Red Cross and Red Crescent and in resolutions of the United Nations General Assembly and Security Council.109 Furthermore, according to Article 1 of its Statutes, the ICRC is “an independent humanitarian organization having a status of its own.”110 These scholars add that the ICRC is recognised as having an “international legal personality” in as much as it enjoys privileges and immunities comparable to those of intergovernmental organisations.111 For example, Christian Dominicé argues that the ICRC has an international personality, as it has the capacity to conclude headquarters agreements, has diplomatic relations with

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its own special organs to fulfil particular functions. An international organisation can be universal in scope (such as the United Nations and the International Organisation for Migration) or regional (the Organisation of American States, Organisation of African Unity, and Organisation for Security and Cooperation in Europe). Alejandro Lorite Escorihuela, “Le Comité international de la Croix-Rouge comme organisation Sui Generis? Remarques sur la personnalité juridique internationale du CICR,” op. cit., p. 587. See also Gabor Rona, The ICRC’s status: in a class of its own, 17 February 2004, available on ICRC’s website: http://www.icrc.org/. See the list of these treaties in Alejandro Lorite Escorihuela, “Le Comité international de la Croix-Rouge comme organisation Sui Generis? Remarques sur la personnalité juridique internationale du CICR,” op. cit., p. 589. The General Assembly and Security Council resolutions mentioning the ICRC are too numerous to list here. A number of those are cited earlier in this Chapter. “Statutes of the ICRC, as adopted on 24 June 1998,” International Review of the Red Cross, No. 324, September 1998, pp. 537–543. The ICRC does not consider itself to be an NGO, mainly because of its special status, but also due to the fact that the Committee is part of the Movement: Peter Nobel, “The Red Cross—Red Crescent Movement: A Model for NonState Participation?,” op. cit., pp. 77 and 80–81. The legal basis for the ICRC’s essential privileges and immunities are recognised in various ways, including: 1–Headquarters Agreements between the ICRC and governments or State legislation. In the nearly eighty countries in which the ICRC carries out significant operations, its international legal personality, judicial immunity and testimonial privilege (right not to be called as a witness) is recognised either by treaty or by legislation; 2–Judicial decisions. Several domestic and international tribunals have ruled on the ICRC’s judicial immunity and testimonial privileges. The rules of procedure and evidence of the newly established International Criminal Court reflect the position of the more than one hundred States that drafted the document, that the ICRC enjoys testimonial immunity.

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States, and can access international justice mechanisms.112 In addition, the UN General Assembly granted observer status to the ICRC.113 The ICRC has seen its international personality recognised by the International Tribunal for the former Yugoslavia (ICTY).114 The Chamber of the ICTY deduced this status from the Geneva Conventions, the ICRC’s statute,115 its observer status at the UN General Assembly,116 and from its headquarters agreements.117 To date, only one writer has challenged the international personality of the ICRC, and those arguments were not substantive.118 The question, however, of the type of organisation, which the ICRC represents, is disputed. The ICRC is referred to by the Economic and Social Council119 and by the Executive Committee of UNHCR120 as an intergovernmental organisation. It is not considered as such under Swiss law121 although Switzerland 112 Christian Dominicé, “La personnalité juridique internationale du CICR,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., pp. 663–673. 113 On 16 October, 1990, the UN General Assembly adopted by consensus resolution 45/6, Observer status for the ICRC, in consideration of the special role and mandates conferred upon it by the Geneva Conventions of 12 August 1949. The resolution was based upon the identical text of draft resolution A/45/191 of 17 August, 1990. Before that, like many NGOs, the ICRC had consultative status with the Economic and Social Council. This status is based upon Article 71 of the UN Charter, which states that the Council “may make suitable arrangements for consultation with non-governmental organisations which are concerned with matters within its competence.” 114 “It is widely acknowledged that the ICRC, an independent humanitarian organization, enjoys a special status in international law, based on the mandate conferred upon it by the international community. (. . .) It is generally acknowledged that the ICRC, although a private organization under Swiss law, has an international legal personality:” ICTY, Prosecutor v. Blagoje Simic, Milan Simic, Miroslave Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, IT-95-9-PT, 27 July 1999, p. 18, para. 46. 115 Ibid., para. 46. 116 Ibid., para. 50. 117 Ibid., para. 55. 118 Giuseppe Barile, “Caractère du Comité international de la Croix-Rouge,” op. cit., p. 115. He casts doubt upon the international personality of the ICRC with the argument that the ICRC is not in a position to assert its rights under international law. 119 See for example UN Doc. E/CN.4/1998/WG.13/2 of 28 November 1997. 120 See UN Doc. A/AC:96/804 of 15 October 1992. 121 The ICRC is constituted as an association under Swiss law. In addition, the Swiss institutions used to consider the ICRC as an international NGO: see for example the 2007 Inventaire des Organisations internationales intéressant la Suisse au sujet desquelles des

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has recognised the international legal personality of the ICRC.122 The new Switzerland Host State Act and Host State Ordinance, which entered into force on 1 January 2008, distinguishes between intergovernmental organisations, international institutions, and international NGOs based in Switzerland.123 Although the ICRC is not cited in this document, an explanatory message from the Federal Authorities from the Swiss Confederation on the Host State Act states that the ICRC should be considered an international institution (an organisation between an NGO and an intergovernmental organisation).124 In fact, the ICRC is closer to an NGO than an intergovernmental organisation. First, the ICRC is a neutral independent Swiss Association; and this is

accords réglant des questions fiscales ont été conclus of the Administration fédérale des contributions where the ICRC is considered as an NGO (“organisation non gouvernementale avec siège en Suisse”). This text might be amended under the new Swiss Host State Act. 122 See Accord du 19 mars 1993 entre le Conseil fédéral suisse et le Comité international de la Croix-Rouge en vue de déterminer le statut juridique du Comité en Suisse, available at: http://www.admin.ch/. Article 1 states that: “Le Conseil fédéral suisse reconnaît la personnalité juridique internationale et la capacité juridique en Suisse du Comité international de la Croix-Rouge (ci-après Comité ou CICR), dont les fonctions sont ancrées dans les Conventions de Genève de 1949 et les Protocoles additionnels de 1977, ainsi que dans les Statuts du Mouvement international de la Croix-Rouge et du Croissant-Rouge.” 123 See Articles 6 and 29 of the Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State of 7 December 2007 (Status as at 1 January 2008), available at: http://www.admin.ch/. 124 “L’institution internationale est très proche de l’organisation intergouvernementale. Elle n’en remplit toutefois pas l’ensemble des critères tels qu’ils sont définis par la pratique internationale et la doctrine. C’est pourquoi la doctrine utilise la plupart du temps, pour ce type d’organisme, la notion d’organisation internationale. Toutefois, pour des raisons de clarté juridique, il s’avère nécessaire d’attribuer à cette catégorie d’acteur international une appellation qui lui soit propre, la notion d’organisation internationale étant par ailleurs aussi utilisée pour qualifier l’organisation intergouvernementale ou, parfois même, l’organisation internationale non gouvernementale. L’organisation intergouvernementale dispose toujours de la personnalité juridique internationale, qui lui est conférée par le traité international qui la crée. Tel n’est pas le cas de l’institution internationale qui jouit toutefois d’une place particulière dans les relations internationales. Nous pouvons citer comme exemples des institutions telles que . . . le Comité international de la CroixRouge (CICR), la Fédération internationale des sociétés de la Croix-Rouge et du CroissantRouge:” Message relatif à la loi fédérale sur les privilèges, les immunités et les facilités, ainsi que sur les aides financières accordés par la Suisse en tant qu’Etat hôte, 13 septembre 2006, p. 15, available at : http://www.admin.ch/.

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clear from both Article 5 of the Statute of the Movement125 and the fact that its membership is comprised exclusively of Swiss citizens.126 In addition, the ICRC was not created by a treaty, but is based upon a private initiative and upon the Swiss Civil Code.127 Its status has not changed.128 Nonetheless, the question of its status in international law differs according to the approach taken. 2.2.2 The Legal Status of the Federation It has been argued that the Federation has attained an international legal status.129 Like the ICRC, it concluded headquarters agreements in which more than thirty States recognised its international legal personality and attributed to it privileges and immunities typical of international organisations.130 Moreover, the content of Articles 1 through 3 of the Federation’s Constitution 125 Paragraph 1 of Article 5 of the Statutes of the Movement reads: “The International Committee, founded in Geneva in 1863 and formally recognised in the Geneva Conventions and by International Conferences of the Red Cross, is an independent humanitarian organization having a status of its own.” 126 Alejandro Lorite Escorihuela, “Le Comité international de la Croix-Rouge comme organisation Sui Generis? Remarques sur la personnalité juridique internationale du CICR,” op. cit., p. 584. 127 Ibid., p. 586. 128 Dr. Nobel argues that the legal status of the ICRC changed following an agreement signed on the 19th of March in 1993 in Berne by the Head of the Swiss Federal Department of Foreign Affairs and the ICRC’s President. He asserts that, by recognising ICRC’s international juridical personality, legal capacity in Switzerland, independence and freedom of action, the agreement also confers on the ICRC the immunities granted to international organisations having their seat in Switzerland. The agreement is to be seen as an international agreement under international law. Therefore, from the day of its entry into force, the ICRC is no longer an NGO, but an IGO: see Peter Nobel, “The Red Cross—Red Crescent Movement: A Model for Non-State Participation?,” op. cit., pp. 79–80. However, as seen previously, an intergovernmental organisation is an organisation created by a treaty ratified by several States. 129 Philippe Gautier, “ONG et personnalité internationale: à propos de l’accord conclu le 29 novembre 1996 entre la Suisse et la Fédération internationale des Sociétés de la CroixRouge et du Croissant Rouge,” Revue belge de droit international, Vol. XXX, No. 1, 1997, pp. 172–189. 130 Sven Peterke, “The Special Status of the International Federation of Red Cross and Red Crescent Societies (IFRC) in Public International Law,” Humanitaräres Völkerrecht, Vol. 19, 2006, p. 268. A standard clause of these headquarters agreements reads: “The Government (. . .) recognises the international legal personality of the Federation, the mandate of which is laid down in the Statutes of the International Red Cross and Red Crescent Movement, adopted by the XXVth International Conference of the Red Cross.”

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have been incorporated into the Statutes of the Movement, which have been approved by the State Parties to the Geneva Conventions. As seen previously, the Federation has been entrusted with specific tasks by international treaties131 and legal disputes between the Federation and its staff are brought to the ILO Administrative Tribunal.132 In addition, the Federation was granted observer status at the General Assembly.133 In the Explanatory Memorandum that initiated the discussion over the Federation’s observer status, several legal arguments as to why the Federation deserved this status were put forward.134 In addition to the endorsement of the Statutes of the Movement by States, reference was made to Article 81 of Protocol I mentioning the Federation, to the link between the Federation and the League of Nations,135 to the “Resolution of the United Nations General Assembly Relative to the Red Cross” of 19 November, 1946, and other references to the Federation in resolutions of the General Assembly. Reference was also made to its legal status agreements and international activities. Paragraph 12 of the memorandum also mentions that the Federation is “an international organization composed of member societies, the unique character and mandate of which have been defined both on the national and international level, by nearly all States that are the very members of the United Nations. This represents, both in substance and in structure, a unique position in the international community.”136 Similarly, the WHO Committee on Non-Governmental 131 For an opposite view, see Sven Peterke, “The Special Status of the International Federation of Red Cross and Red Crescent Societies (IFRC) in Public International Law,” op. cit., p. 270. 132 Statement by the ILO Committee on Legal Issues and International Labor Standards, ILO Doc. GB.271/LILS/, 1 March 1998. 133 UN General Assembly Resolution 49/2, UN Doc. A/Res./49/2, 19 October 1994. For an analysis, see Wilfried Remans, “The Granting of Observer Status by the General Assembly of the United Nations to the International Federation of the Red Cross and Red Crescent Societies,” in Karel Wellens (ed.), International Law: Theory and Practice—Essays in Honour of Eric Suy, Kluwer Law International, The Hague/Boston, 1998, pp. 347–362. 134 See Annex 1, Request for an Inclusion of a Supplementary Item in the Agenda of the FortyNinth Session, Observer Status for the International Federation of the Red Cross and Red Crescent Societies in the General Assembly, UN Doc. A/49/192, 19 August 1994, p. 4. 135 Article 25 of the Covenant of the League of Nations states “The Members of the League agree to encourage and promote the establishment and co-operation of duly authorised voluntary national Red Cross organisations having as purposes the improvement of health, the prevention of disease and the mitigation of suffering throughout the world.” 136 Sven Peterke, “The Special Status of the International Federation of Red Cross and Red Crescent Societies (IFRC) in Public International Law,” op. cit., p. 271.

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Organisations stated that the Federation “has a special status in international law.”137 Like the ICRC, the Federation is a Swiss association with a bilateral agreement with Switzerland,138 although according to the 2008 Switzerland Host State Act, the Federation can be considered an “international institution.”139 In addition, the Federation is declared by its Constitution to be “an independent, non-governmental, non-racial, non-political and non-sectarian organisation.”140 Consequently, it cannot be considered an intergovernmental organisation and in reality is closer to an NGO. Therefore, the Federation has a status similar to that of the ICRC in international law. 2.2.3 The Legal Status of National Societies Scholars have argued that the National Societies have a specific legal status.141 This contention arises primarily out of the impact of recognition of the National Societies by the ICRC, which has led to the National Societies effectively becoming a component of the Movement. That status as a recognised

137 WHO Doc. EB 103/23, 28 January 1999, para. 17. 138 See Echange de lettres du 29 novembre 1996 entre la Confédération suisse et la Fédération internationale des Sociétés de la Croix-Rouge et du Croissant-Rouge concernant le statut des fonctionnaires internationaux de nationalité suisse à l’égard des assurances sociales suisses (AVS/AI/APG et AC), available at: www.admin.ch/. 139 “L’organisation intergouvernementale dispose toujours de la personnalité juridique internationale, qui lui est conférée par le traité international qui la crée. Tel n’est pas le cas de l’institution internationale qui jouit toutefois d’une place particulière dans les relations internationales. Nous pouvons citer comme exemples des institutions telles que . . . la Fédération internationale des sociétés de la Croix-Rouge et du Croissant-Rouge:” Message relatif à la loi fédérale sur les privilèges, les immunités et les facilités, ainsi que sur les aides financières accordés par la Suisse en tant qu’Etat hôte, op. cit., p. 15. 140 Wesley A. Sturges, “The Legal Status of the Red Cross,” Michigan Law Review, Vol. 56, No. 1, November 1957, p. 2. 141 Christophe Lanord, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant Rouge, Editions de la Chapelle, Geneva, 1999; Paul Des Gouttes, “Note sur l’indépendance des sociétés nationales de la Croix-Rouge,” Revue internationale de la croix-rouge, No. 295, juillet 1943, pp. 521–523; Christophe Lanord, “The Legal Status of National Red Cross and Red Crescent Societies,” International Review of the Red Cross, No. 840, December 2000, pp. 1053–1077; Allan Rosas, “Notes on the Legal Status of National Red Cross Societies,” dans Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., pp. 959–973.

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Society entails rights and obligations defined by the Movement’s Statutes.142 Only a recognised National Society is entitled to participate as a full member in the International Conference of the Red Cross and Red Crescent. At this Conference, States party to the 1949 Geneva Conventions and Movement members discuss matters of mutual interest on an equal footing.143 The status of a member of the Movement also entails reciprocal rights and obligations between States and National Societies.144 In addition, the new Constitution of the Federation, adopted in 1999, states that recognised National Societies can become Federation members.145 The admission of a National Society to the Federation is subject to decision by the Assembly of the Federation, which decides by a qualified majority of sixty per cent of the member Societies present and voting. Membership implies rights146 142 Solidarity with other components is one of those obligations, including the support to be given to the ICRC. 143 Christophe Lanord, “The Legal Status of National Red Cross and Red Crescent Societies,” op. cit., pp. 1070–1071. 144 Article 2 of the Statutes of the Movement provides that: 1. The States Parties to the Geneva Conventions cooperate with the components of the Movement in accordance with these Conventions, the present Statutes and the resolutions of the International Conference. 2. Each State shall promote the establishment on its territory of a National Society and encourage its development. 3. The States, in particular those which have recognised the National Society constituted on their territory, support, whenever possible, the work of the components of the Movement. The same components, in their turn and in accordance with their respective statutes, support as far as possible the humanitarian activities of the States. 4. The States shall at all times respect the adherence by all the components of the Movement to the Fundamental Principles. 5. The implementation of the present Statutes by the components of the Movement shall not affect the sovereignty of States, with due respect for the provisions of international humanitarian law. 145 A National Society may, however, be recognised by the ICRC and not become a member of the Federation. 146 The rights of each member Society include, among others: to be represented at and to participate in the work of the Assembly with the right to vote; to stand for election, and to nominate candidates, to all official bodies of the Federation; to request the Federation to provide representation in the international field; to submit, on its own initiative, in its name or in that of a group of member Societies, proposals to the Assembly and to other bodies of the Federation; to communicate directly with the Federation. See Article 5 of the Constitution of the International Federation of Red Cross and Red Crescent Societies.

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and duties.147 Based upon the Constitution of the Federation, all Societies have the duty to apply decisions adopted by the Federation’s Assembly and Governing Board. Furthermore, National Societies are cited in international law treaties. On this basis, in a number of cases, they have been granted special status in national laws. One example can be found in the United States. By an opinion dated 26 November 1951, the Attorney General of Georgia stated: “The purposes for which this organization [the US National Society] was created and incorporated by Congress was to enable the United States Government to meet its obligations under the conference of October 1863, and the treaties of the Red Cross of August 22, 1864, and July 27, 1929, which were the result of the conference and to which the United States Government is a party.”148 The act creating the American Society further provided that the Society is to function as a unit in accord with the Statutes of the International Red Cross. In addition, it stated that the purposes of the American Society were to aid the United States in acquitting itself of its undertakings in the Geneva Conventions to ameliorate the lot of the sick and wounded of the armies.149 As “auxiliaries to the public authorities,” National Societies are neither State organs nor characteristic private associations, although they typically have the benefit of a semi-public status.150 Nonetheless, it should be noted that independence is a principle among the conditions of recognition of National Societies. In essence, this means that the National Societies, while auxiliaries in the services to their government and subject to national laws, must maintain their autonomy and their ability to act in accordance with Red Cross principles. In reality, some National Societies are independent and can 147 The Constitution also mentions the “duties” of each member Society: to support the Federation in the pursuit of its general object and to apply the decisions adopted by the Assembly and by the Board; to ensure that the Fundamental Principles are carefully observed in the activities of the Society and that its bodies adhere to those Principles; to remit an annual contribution to the Federation approved by the Assembly; to inform the Federation, through the Secretary General, of any proposed amendments to its own Statutes and of the composition of its main governing and managing bodies; to transmit to the Federation, through the Secretary General, its annual reports, including financial statements. See Article 5 of the Constitution of the International Federation of Red Cross and Red Crescent Societies. 148 Wesley A. Sturges, “The Legal Status of the Red Cross,” Michigan Law Review, Vol. 56, No. 1, November 1957, p. 15. 149 Ibid., p. 16. 150 Allan Rosas, “Notes on the Legal Status of National Red Cross Societies,” in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 959.

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maintain a dialogue with their own governments on equal terms, both giving and taking criticism.151 In practise, the legal nature of the National Societies varies. In common law, creation of the Society or incorporation in the national system is made by a special act of the legislature. Such Societies tend to have a special status and are dependent upon the specific act of the legislature that created them. For example, the National Society of the United States of America is a membership corporation created and named by a special act of Congress.152 In socialist countries, National Societies also appear to display a public character, as mass voluntary public organisations or something analogous, while their status is usually governed by general legislation. In continental legal systems, there is usually a more marked distinction between corporate entities of private law and those of public administrative law. In these systems, National Societies tend to be associations of private law, albeit entrusted with public functions, recognised by governmental or ministerial decree.153 In France, for example, the National Society was created as an association.154 Consequently, National Societies do have a status in national law, but their status in international law depends on the conception of international legal personality used. 2.2.4 Legal Status of NGOs in General International Law Legal scholars have not reached a consensus on the question of whether some NGOs benefit from an international legal personality.155 While some scholars 151 Peter Nobel, “The Red Cross—Red Crescent Movement: A Model for Non-State Participation?,” in Theo Van Boven and al. (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors, op. cit., p. 84. 152 It was, however, different from other government corporations in three aspects: (1) the Congress declared its belief that the corporation needed to be put under “government supervision” by providing for government appointment of part of the governing body of the corporation and for annual audit of its accounts; (2) The corporation had to qualify as a National Society (so designated by the Government and recognised by the ICRC); (3) the corporation was created by the United States of America to fulfil its undertakings as a contracting party of the Geneva conventions: see Wesley A. Sturges, “The Legal Status of the Red Cross,” op. cit., p. 9. 153 Allan Rosas, “Notes on the Legal Status of National Red Cross Societies,” in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., pp. 970–971. 154 La Croix-Rouge française est une association loi 1901, reconnue d’utilité publique depuis 1945. 155 Christine Bakker and Luisa Vierucci, “Introduction: a Normative or Pragmatic Definition of NGOs?,” in Pierre-Marie Dupuy and Luisa Vierucci (eds.), NGOs in International Law, Efficiency in Flexibility?, Edward Elgar, Cheltenham, p. 1.

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deny a legal international position for NGOs,156 others do not mention this possibility in their discussion on the subjects of international law.157 Yet others support the cautious recognition of a legal international personality for NGOs.158 In reality, every NGO, no matter how international, is obliged to register as a national organisation in the country where it establishes itself.159 In general, an NGO enjoys a legal personality only in municipal law, not in international law.160 For an NGO’s legal status to be recognised outside its home country, there should be bilateral agreements between the States or a multilateral treaty.161 Institutions and scholars have envisaged an eventual common international status for NGOs, whether conferred by treaty or attained by harmonisation of national laws. There have been several initiatives to recognise a specific legal status for NGOs in both national and international law.162 Ten projects have 156 Serge Sur, “Vers une Cour pénale internationale: la Convention de Rome entre les ONG et le Conseil de sécurité,” Revue générale de droit international public, Tome 103, No.1, 1999, pp. 35–38. 157 Ian Brownlie, Principles of Public International Law, Oxford University Press, Oxford, 1998, pp. 57–61; Société française pour le droit international, Colloque du Mans: Le sujet en droit international, Pédone, Paris, 2005. 158 Richard Falk, “The World Order between Inter-State Law and the Law of Humanity,” in Daniele Archibugi and David Held (eds.), Cosmopolitan Democracy: An Agenda for a New World Order, Polity Press, Cambridge, 1995, pp. 163–179; Christian Tomuschat, Human Rights: Between Idealism and Realism, Oxford University Press, Oxford, 2003, p. 231. 159 Anthony J. N. Judge, “Les problèmes entravant l’action des organisations internationales non-gouvernementales (OING),” Associations transnationales, mars 1980, pp. 150–151; Frits Hondius, “Law is like Music, The Legal Dimension of NGOs,” Associations transnationales, janvier 2002, p. 25. 160 Steve Charnovitz, “Non-Governmental Organizations in International Law,” American Journal of International Law, Vol. 100, 2006, p. 355; Kerstin Martens, “Examining the (Non-) Status of NGOs in International Law,” Indiana Journal of Global Legal Studies, Summer 2003, p. 1; Karsten Nowrot, “Legal Consequences of Globalization: The Status of Non-governmental Organizations Under International Law,” Indiana Journal of Global Legal Studies, 1999, p. 579. 161 Frits Hondius, “La reconnaissance et la protection des ONG en droit international,” Associations transnationales, janvier 2000, p. 4; Marcel Merle, “Un imbroglio juridique; le ‘statut’ des OING, entre le droit international et les droits nationaux,” dans L’internationalité dans les institutions et le droit, convergences et défis, études offertes à Alain Plantey, Pedone, Paris, 1995, pp. 341–351. 162 For a comprehensive review of all projects from experts and international organisations to grant or recognise a kind of (international) legal status to NGOs, see Georges Patrick Speeckaert, “La reconnaissance juridique des associations transnationales,” Associations transnationales, janvier–février 1981, pp. 21–23. See also Georges Patrick Speeckaert, “Le

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been drafted since 1910, but none have achieved significant results.163 A treatybased common status was, however, recently achieved for NGOs established in Member States of the Council of Europe, which have ratified the European Convention on the Recognition of the Legal Personality of International NonGovernmental Organisations. The Convention does not establish a procedure for the recognition of the international legal personality of NGOs on the international plane. It merely provides that the personality acquired by an NGO in the State party in which it is established shall also be recognised in the other State parties. The Convention, therefore, confirms that NGOs have legal status under domestic law.164 Two authors have argued that the Order of Malta has an international legal personality.165 This is notably due to the headquarters agreements that this organisation has with States. However, in some countries, such as in Benin, Senegal and Gabon (for the World Wildlife Fund), other international NGOs have signed headquarters agreements with the Government, granting those privileges and immunities.166 In addition, some NGOs are using remedies at the international level by, for example, declaring their acceptance of the ILO

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statut juridique des associations transnationales,” Associations transnationales, août-septembre 1980, pp. 372–373; Marcel Merle, “Un imbroglio juridique; le ‘statut’ des OING, entre le droit international et les droits nationaux,” op. cit., pp. 341–351; Dudley Smith, “La personnalité juridique des organisations internationales non gouvernementales, Rapport à l’assemblée parlementaire du Conseil de l’Europe,” Associations transnationales, mars 1986, pp. 138–141; Marie-Odile Wiederkehr, “La convention européenne sur la reconnaissance de la personnalité juridique des organisations internationales non gouvernementales du 24 avril 1986,” Associations transnationales, 1988, pp. 181–189; Frits Hondius, “La reconnaissance et la protection des ONG en droit international,” Associations transnationales, janvier 2000, pp. 2–4; Frits Hondius, “Law is like Music, The Legal Dimension of NGOs,” op. cit., pp. 23–26. The full list of these projects is available in “International Statutes Series,” Union des Associations Internationales, Vol. 1, 1988. Nigel Rodley, “Human Rights NGOs: Rights and Obligations (Present Status and Perspectives),” in Theo Van Boven et al. (eds.), The Legitimacy of the United Nations: Towards and Enhanced Legal Status of Non-State Actors, op. cit., p. 45. Béat De Fischer, “L’Ordre Souverain de Malte,” RCADI, Vol. 163, 1979-II; Gerald I. Draper, “Functional Sovereignty and the Sovereign Military Hospitaller Order of Saint John of Jerusalem of Malta,” Annales de l’Ordre Souverain Militaire de Malte, Vol. 78, 1974; Béat De Fischer, “L’Ordre Souverain de Malte aujourd’hui,” Revue internationale de la croix-rouge, No. 673, janvier 1975, pp. 5–8. Michel Doucin, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, op. cit., pp. 34, 63 and 110.

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Administrative Tribunal as their judicial organ for the settlement of disputes with staff members.167 Further examination of the features of an international legal personality is therefore necessary to answer the question of whether NGOs acting in armed conflicts can benefit from a specific status in international law. An important answer has been provided by the ICJ in this regard, in the Reparations for Injuries case. 2.3 The Reparations for Injuries Case The Reparations for Injuries case has resolved the issue of international legal personality for many scholars. In this case, the ICJ stated: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends upon the needs of the community.”168 To answer whether the United Nations is an international person, the ICJ decided to “consider what characteristics it [the UN Charter] was intended thereby to give to the Organization.”169 In this connection, the Court states that the Charter conferred upon the Organisation rights and obligations, which are different from those of its Members. The Court stresses, further, the important political tasks of the Organisation including the maintenance of international peace and security. Accordingly, the Court concludes that the Organisation possessing as it does rights and obligations, has at the same time a large measure of international personality and the capacity to operate upon an international plane.170 The Court further stated that the UN could not “carry out the intentions of its founders if it was devoid of international personality.”171 The Court then stated: Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is “a super-State,” whatever that expression may mean. It 167 Kaiyan Homi Kaikobad, The International Court of Justice and Judicial Review: A Study of the Court’s Powers With Respect to Judgments of the ILO and UN Administrative Tribunals, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 2000, p. 96. 168 Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p. 178. 169 Ibid., p. 178. 170 Ibid., pp. 178–179. 171 Ibid., p. 179.

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does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.172 To respond to the question whether the rights of the United Nations comprise the right to bring the kind of international claim in question in the opinion, the Court stated: Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.173 In addition, the Court declared that the United Nations’ international personality could also be opposed to States not having ratified the Charter, as fifty States, “representing the vast majority of the members of the international community,” had the power to bring into being an entity possessing objective international personality and not recognised by them alone.174 In subsequent decisions, the ICJ confirmed that international organisations are subjects of international law, and the main task of the ICJ was not to establish personality, but to state the specific powers an international organisation possessed.175 There is considerable disagreement in doctrine as to which conception of international personality the Court applied in the Reparations for Injuries case.176 A number of scholars have understood it as a manifestation of the participant conception, since the UN’s international personality did not depend on the Charter or on the intention of the member States, but on the UN fulfiling

172 173 174 175

Ibid., p. 179. Ibid., p. 180. Ibid., p. 185. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 1980 ICJ Reports, pp. 89–90, para. 37; Legality of the Use of Nuclear Weapons by a State in Armed Conflict, p. 79, para. 25; Certain Expenses of the United Nations, Advisory Opinion, 1962 ICJ Reports, p. 167. 176 Dapo Akande, “International Organisations,” in Malcolm D. Evans (ed.), International Law, second edition, Oxford University Press, Oxford, 2006, p. 282; Hermann Mosler, “Die Erweiterung des Kreises der Völkerrechtssubjekte,” ZaöRV, Vol. 22, 1962, p. 19; Roland Portmann, Legal Personality in International Law, op. cit., p. 89.

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certain preconditions of customary international law.177 The academic literature has also deduced that it is a manifestation of the recognition conception, stating that the Court examined whether member States had recognised the UN as an international person per implication (although the court regarded the personality of the UN as opposable to non-member States).178 Other academics have analysed it as an application of the formal conception of international personality, as the court enumerated rights, duties, and capacities attached to the UN Charter.179 Most doctrinal analyses merge the formal and the recognition conceptions in examining the Charter to derive from it rights and duties, powers, which in turn determine the organisation’s personality.180 2.4 Conclusion on the Concept of International Personality For organisations other than the United Nations, whether they are international persons depends on which conception of international personality is applied.181 For example, using a participant conception of international 177 Angelo Piero Sereni, Diritto Internazionale (II/2), Guiffré, Milano, 1960, pp. 843–850; Finn Seyersted, “United Nations Forces: Some Legal Problems,” BYIL, 1961, pp. 454–455; Finn Seyersted, Objective International Personality of Intergovernmental Organizations: Do their Capacities really depend upon their Constitutions?, Copenhagen, 1963, p. 9; Manuel Rama-Motaldo, “International Legal Personality and Implied Powers of International Organizations,” BYIL, Vol. XLIV, 1970, pp. 124–129; Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice: International Organisations and Tribunals,” BYIL, 1952, p. 3; Dapo Akande, “International Organizations,” in Malcolm D. Evans (ed.), International Law, second edition, Oxford University Press, Oxford, 2006, p. 282; Ian Brownlie, Principles of Public International Law, sixth edition, Oxford University Press, Oxford, 2003, p. 649. 178 Georg Schwarzenberger, International Law, International Law as Applied by International Courts and Tribunals, third edition, Stevens, London, 1957, p. 138; Paul Reuter, Institutions internationales, Presses universitaires, Paris, 1955, pp. 316–318; Rudolf Bindschedler, “Die Anerkennung im Völkerrecht,” Archiv des Volkerrecht, Vol. 9, 1961–1962, pp. 387–388. 179 Ignaz Seidl-Hohenveldern, “Die völkerrechtliche Haftung für Handlungen internationaler Organisationene im Verhältnis zu Nichtmitgliedstaaten,” Osterreichische Zeitschrift für Offentliches Recht, 1961, p. 498; Gaetano Arangio-Ruiz, Diritto Internazionale e Personalità Guiridica, Cooperativa Libraria Universitaria, Bologna, 1972, pp. 257–258 (note 1). 180 Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems, Stevens, London, 1950, p. 329; Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, third edition, Martinus Nijhoff, The Hague, 1995, pp. 978–979, para. 1565; Finn Seyersted, Objective International Personality of Intergovernmental Organizations: Do their Capacities really depend upon their Constitutions?, op. cit., pp. 15–17. 181 Roland Portmann, Legal Personality in International Law, op. cit., p. 18.

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personality, every organisation with effective institutional bodies is regarded as an objective international person.182 According to the recognition conception, NGOs are international persons only when States have recognised them as such.183 Consequences of international personality similarly differ according to the conception used. For example, if one starts from the presumption that primarily States are international persons and as such, holders of customary rights and duties, NGOs can only be regarded as addressees of customary international law when recognised by States as international persons. But by definition, NGOs will be considered bound by customary international law if one adheres to a participant conception: i.e., an NGO that exercises influence in international relations, enjoys rights, and bears duties under customary international law. In the formal conception, any entity can be the subject of customary international law whenever the rule in question so declares.184 Although the ICJ in the Reparations for Injuries case was tautological185 in its definition of an “international person”,186 it provided a useful basis. In fact, 182 Finn Seyersted, Objective International Personality of Intergovernmental Organizations: Do their Capacities really depend upon their Constitutions?, op. cit., p. 9; Rosalyn Higgins, “International Law and the Avoidance, Containment and Resolutions of Disputes: General Course on Public International Law,” RCADI, Vol. 230, 1991-V, p. 78. 183 Georg Swarzenberger, “The Fundamental Principles of International Law,” RCADI, Vol. 87, 1955-I, p. 252; Derek William Bowett, The Law of International Institutions, fourth edition, Stevens, London, 1982, pp. 342–343. 184 Roland Portmann, Legal Personality in International Law, op. cit., p. 19. 185 The circularity of the definition has been addressed by the literature: Andrew Clapham, Human Rights Obligations of Non-States Actors, op. cit., p. 64; Ian Brownlie, Principles of Public International Law, op. cit., p. 57; Derek William Bowett, The Law of International Institutions, fourth edition, Stevens, London, 1982, pp. 336–337; James R. Crawford, The Creation of States in International Law, second edition, Oxford University Press, Oxford, 2006, p. 28; John Currie, Public International Law, Irwin Law, Toronto, 2001, p. 19; Jan Klabbers, “(I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of NonState Actors,” in Jarna Petman and Jan Klabbers (eds.), Nordic Cosmopolitanism: Essays in International Law for Marti Koskenniemi, Brill, Leiden, 2003, pp. 367–368; Jan Klabbers, “The Concept of Legal Personality,” Ius Gentium, Vol. 11, 2005, pp. 35–66; Robert Kolb, “Une observation sur la determination de la subjectivité internationale,” Zör, Vol. 52, 1997, p. 117; Christian Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century: A General Course on Public International Law,” RCADI, Vol. 281, p. 127. 186 “An international person . . . is . . . capable of possessing international rights and duties, and . . . has capacity to maintain its rights by bringing international claims:” Reparations for Injuries Suffered in the Service of the United Nations, op. cit., p. 179.

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the best position seems to be between the approach of the ICJ in this case (conceived mostly as a manifestation of the formal conception) and the participant conception of international personality. The participant conception in itself is not sufficient as an opinio juris is required in order to transforms facts into law (effective action is not directly relevant in normative terms). However, this conception is useful in understanding why NGOs such as MSF or OXFAM, which are not nominatively cited as such in IHL treaties (contrary to the members of the Movement), but possess functions and purposes of entities mentioned in these treaties, can be applied international legal consequences. The status of an organisation is therefore evaluated on the basis of its actual existence and functions, rights and duties, as specified or implied in international treaties, and developed in practise. And customary rights of NGOs are not dependent on being opposable to a State party. It is neither necessary nor sufficient to be recognised by States in order to acquire international legal status.187 However, recognition can have evidentiary value since having been recognised as an international person may provide an indication that norms of general custom apply to the entity in question.188 However, since neither the formal nor the participant conceptions specify the consequences of legal personality, it is more important to examine the rights and duties granted by the Geneva Conventions and Additional Protocols to NGOs than the ‘personality’ of these NGOs in IHL (although this approach could be also slightly circular).189 There is no particular legal advantage to be gained from being regarded as having international legal personality. The legal status of NGOs should rather be described as an aggregate of the rights and 187 It is not sufficient in the sense that recognition as an international person alone does not imply any direct legal consequences as a matter of international law: see Roland Portmann, Legal Personality in International Law, op. cit., p. 245. 188 To a certain extent, the reasoning in Prosecutor v. Simic and al. (Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness), ICTY Trial Chamber, 27 July 1999, para. 46, can be understood along these lines when the Chamber declared a customary rule to confidentiality applicable to the ICRC. 189 Envisaging the question of legal personality in terms only of rights and duties bears the risk of circularity. As noted by Jean d’Aspremont “rights and duties presuppose the existence of legal personality whereas legal personality manifests itself through the existence of rights and duties”: Jean d’Aspremont, “Conclusion: inclusive law-making and lawenforcement processes for an exclusive international legal system,” in Jean d’Aspremont (ed.), Participants in the International Legal System, Routledge, London/New York, 2011, p. 432. But here these rights and obligations (or limitations of rights) will be examined only as an aggregate of customary norms.

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obligations that have been conferred on them.190 In any case, “the rights and duties themselves make up the contents of international personality.”191 3

The Carrots: Can NGOs Benefit from Direct Rights in International Humanitarian Law?

In fact, the concept of “rights” can describe a variety of legal relationships: an entitlement to something from the bearer of a corresponding obligation (a claim), an immunity against encroachment of certain fundamental interests, a privilege to do something, or a power to create a legal relationship.192 The position most commonly identified with having a right is what Hohfeld calls a “claim.”193 It would be taken here as covering claims grounded in the interest of the holder (an NGO) in armed conflict situations.194 It has been argued that human rights law emphasises granting positive rights to the individual, while IHL protects the interests of the individuals through other means than the granting of rights. This difference is reflected in the procedural capacity of individuals to act to enforce their rights under IHL and human rights law.195 This section examines that argument, using the concept of the “individual” including all those natural and non-natural persons acting separately and as groups.196 190 Anna-Karin Lindblom, “Non-Governmental Organizations and Non-State Actors in International Law,” in Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, p. 149. 191 David Feldman, “International Personality,” RCADI, Vol. 191, 1985-II, p. 371. 192 Wesley Hohefeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal, Vol. 23, 1913, p. 16; Jeremy Waldron (ed.), Theories of Rights, Oxford University Press, Oxford, 1984; Carol Smart, Feminism and the Power of Law, Routledge, London, 1989, pp. 138–145; Joseph Raz, “Legal Rights,” Oxford Journal of Legal Studies, 1984, p. 1; Carl Tushnet, “An Essay on Rights,” Texas Law Review, No. 62, 1984, p. 1363; René Provost, International Human Rights and Humanitarian Law, op. cit., pp. 17–18; Carl Wellman, A Theory of Rights, Rowman and Allanheld, Totowa, 1985, pp. 7–15; Wayne Sumner, The Moral Foundations of Rights, Oxford University Press, Oxford, 1987; Hillel Steiner, An Essay on Rights, Blackwell, Oxford, 1994, pp. 55–102. 193 If a person A has a claim that a person B pay him 10 dollars, that claim correlatively entails that B has a duty to pay A 10 dollars. 194 See René Provost, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002, p. 18. 195 Ibid., p. 16. 196 This definition is similar to that adopted under the European Convention on Human Rights.

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3.1 Direct Rights in International Humanitarian Law Treaties The idea that international law provisions can be directly binding on individuals and NGOs dates back at least to the sixteenth century. Korowicz for example relied on the writings of Grotius, Pufendorf, and Hobbes.197 A century earlier, Vitoria acknowledged that “non-State entities had internationally recognised legal rights.”198 In the twentieth century, the PCIJ held that there was no obstacle inherent in international law to prevent States from conferring international rights on individuals, if this is the intention of States (recognition conception).199 The ICJ has further recognised that individuals have the capacity to be holders of rights granted under treaties, as in the LaGrand and Avena case.200 But this interpretation has been disputed, in particular the extension of this interpretation to NGOs.201 These last decisions adopted a slightly different approach 197 Marek St. Korowicz, The Problem of the International Personality of Individuals, op. cit., p. 534. 198 Rosalyn Higgins, “Conceptual Thinking About The Individual In International Law,” in Richard Falk, Saul H. Mendlovitz and Friedrich Kratochwil (eds.), International Law: a Contemporary Perspective, Boulder, Westview, 1985, pp. 476 and 478, as cited from P. K. Menon, “The International Personality of Individuals in International Law: A Broadening of the Traditional Doctrine,” Journal of Transnational Law and Policy, Vol. 1, 1992, p. 155. 199 Advisory Opinion on the Jurisdiction of the Courts of Danzig, 1928, PCIJ Series B, No. 15, pp. 17–18. See also Certain German Interests in Polish Upper Silesia (Merits), 1926, Series A, No. 7 and Interpretation of the Greco-Bulgarian agreement of December 9th, 1927 (Caphandris-Molloff agreement), 1932, Series A/B, Fascicule No. 45, for similar statements. It should be however noted that this decision has been interpreted controversially: see e.g. the opposing interpretations as put forward by Georg Schwarzenberger, International Law, Volume I: International Law as Applied by International Courts and Tribunals, second edition, Stevens, London, 1949, pp. 77 and Hersch Lauterpacht, The Development of International Law by the Permanent Court of International Justice, Longmans, London, 1934, pp. 51–53. 200 In the Avena case, the Court observed the “special circumstances of interdependence of the rights of the State and of individual rights” whereby violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and violations of the rights of the latter may entail a violation of the rights of the individual: Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 ICJ Reports, p. 27, para. 40. 201 Giorgio Gaja was in favor (“The Court stated in the Lagrand case that individuals are also subjects of international law. This approach may lead the Court to assert the legal personality even of NGOs”) in First Report on Responsibility of International Organisations, ILC 2003, U.N. Doc. A/CN.4/532, para. 17, while James Crawford was doubtful: see The ILC Articles on Responsibility of States, pp. 887–888. In the end, the ILC did not reach a consensus on the meaning of the Lagrand and Avena cases and Article 1 of its Draft Articles on Diplomatic Protection stated that it is “formulated in such a way as to leave

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than the PCIJ in the Mavrommatis case,202 and the ICJ in the Nottebohm,203 and Barcelona Traction204 cases. The academic literature has also acknowledged that individuals and NGOs both have rights in international law.205 Furthermore, one author has argued the direct endowment of certain rights to the ICRC by the 1949 Geneva Conventions.206 The International Law Commission also took a step toward this analysis in its Final Articles on Responsibility of States for Internationally Wrongful Acts in 2001.207 Other scholars believe that rights should be accorded to NGOs on a case-by-case basis, and only if ‘functional’ to the pursued objective.208

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open the question whether the State exercising diplomatic protection does so in its own right or that of its national—or both:” see Draft Articles on Diplomatic Protection with Commentaries, ILC 2006, U.N. Doc. A/61/10, p. 26, para. 50. The Court asserted that the individual has no direct rights in the international legal system, but that a State can invoke its own international rights to protect a national’s interest (diplomatic protection): The Mavrommatis Palestine Concessions (Greece v. UK), Jurisdiction, PCIJ Series A No. 2, 1924, p. 12. Nottebohm case (Liechtenstein v. Guatemala), Second Phase (Judgement), 1955 ICJ Reports, p. 24. The ICJ stated that by exercising diplomatic protection on behalf of shareholders, “it is its own right that the State is asserting:” Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase (Merits), 1970 ICJ Reports, para. 78. In particular by James Leslie Brierly, Hans Kelsen, George Scelle, Léon Duguit, Nicolas Politis, Hersch Lauterpacht and George Manner. See also August Reinisch, “The Changing International Legal Framework for Dealing with Non-State Actors,” in Philip Alston (ed.), Non State Actors and Human Rights, Oxford University Press, Oxford, p. 71 (in the field of human rights). Christian Dominicé, “La personnalité juridique internationale du CICR,” in Chistophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, op. cit., pp. 663–673. Article 33(2) stipulates that the part of the Articles dealing with State responsibility is “without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.” The Commentary to the Article states that they do not deal with the possibility of the invocation of responsibility by non-State actors but at the same time it notes that some procedures may be available enabling a non-State entity to “invoke the responsibility on its own account and without State involvement:” Report of the International Law Commission to the General Assembly, Supplement No. 10, UN Doc. A/56/10, Commentary to Article 33, pp. 234–235. Ruth Wedgwood, “Legal Personality and the Role of Non-Governmental Organizations and Non-State Political Entities in the United Nations System,” in Rainer Hofmann (ed.), Non-State Actors as New Subjects of International Law, Duncker and Humblot, Berlin, 1999, pp. 21–36.

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Not all treaties can be said to be intended to impose rights directly on NGOs. Nonetheless, some have this effect, so that the organisation or individual can be said to acquire these rights without the intervention of municipal legislation.209 Obviously, rights granted under customary international law also have a direct effect. The laws of armed conflict in particular took into account from its origin the possibility of granting individual rights. The laws of war have always contained rules based on chivalry, humanity, and religious values that were designed to protect non-combatants, especially women, children, and old men.210 The initiators of the nineteenth century conventions believed that human beings had inviolable rights during armed conflicts.211 But the evolution toward the concept of direct rights was made gradually in international humanitarian law. Although earlier IHL texts were concerned with the protection of individuals, they were protected in general terms.212 Humanitarian law treaties protected wounded, sick, shipwrecked, or captured combatants. Certain civilians, such as journalists and civilian medical and religious personnel were subsequently protected by IHL treaties. Nonetheless, no concept of the human rights of individuals or organisations is found in the 1864 Geneva Convention, or the 1899 and 1907 Hague Regulations. The idea of “rights” started to appear in the 1929 Geneva Convention.213 But for the most part, it was in the 1949 Geneva Conventions that the concept of granting rights to individuals was affirmed.214 Certain articles of the Geneva

209 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, Peace, Vol. I, ninth edition, Longman, London, 1996, p. 847. 210 Theodor Meron, Henry’s Wars and Shakespeare’s Laws, Oxford University Press, Oxford, 1993; Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare, Oxford University Press, Oxford, 1998. 211 Commentary Article 8 of the Fourth Geneva Convention, p. 77. 212 See for example Article 6 of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for.” 213 See Article 3 of the 1929 Geneva Convention relative to the Treatment of Prisoners of War: “Prisoners of war are entitled to respect for their persons and honour” and Article 42 of the same Convention: “Prisoners of war shall have the right to bring to the notice of the military authorities.” The French version of these Articles is even clearer in terms of rights: “Les prisonniers de guerre ont droit au respect de leur personnalité et de leur honneur” and “Les prisonniers de guerre auront le droit de faire connaître aux autorités militaires.” 214 René-Jean Wilhelm, “Le caractère des droits accordés à l’individu dans les Conventions de Genève,” Revue internationale de la croix-rouge, No. 380, août 1950, p. 563.

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Conventions directly recognise rights,215 while others are more general and seem to contain elements of individual benefits.216 Several provisions of the Geneva Conventions similarly use the language of “rights,” “privileges,” “entitlements,” and “claims.”217 Common Article 6/6/6/7 is particularly important because it clarifies that rights are granted to the protected persons themselves and introduces into international humanitarian law an analogy to jus cogens. The Fourth Geneva Convention protects “persons taking no active part in the hostilities” and “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”218 Certain provisions of the Fourth Convention govern general treatment of the population and internees.219 The thrust of the Geneva Conventions and Protocols is, therefore, to go beyond the inter-State level to protect individuals and groups of individuals.220 According to Meron, agreements restricting rights of protected persons may, in some cases, violate the classic concept of jus cogens.221 215 See common Article 7/7/7/8 of the Geneva Conventions, providing that “Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.” See also common Article 6/6/6/7 of the Geneva Conventions, stating that “In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 67, 72, 73, 75, 109, 110, 118, 119, 122 and 132, the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision. No special agreement shall adversely affect the situation of prisoners of war, as defined by the present Convention, nor restrict the rights which it confers upon them.” 216 For example, the grave breaches provisions could be construed as conferring individual rights against acts such as wilful killing, torture or inhuman treatment wilfully causing great suffering or serious injury to body and health. The same holds true for norms applicable in non-international armed conflicts, such as the prohibition of violence to life, outrages upon personal dignity, and humiliating and degrading treatment, stipulated in Article 3 common to the Geneva Conventions and in Article 4 of Protocol II. 217 See for example Articles 5 and 27 of the Fourth Geneva Convention; Articles 11, 45, and 75 of Protocol I. 218 Articles 3 and 4 of the Fourth Geneva Convention. 219 Juraj Andrassy, “L’individu en droit international humanitaire,” in D. S. Constantopoulos, C. Th. Eustathiades, C. N. Fragistas (ed.), Grundproblem des Internationalen Rechts, Festschrift, für Jean Spiropoulos, Schimmelbusch and Co, Bonn, 1957, pp. 4–5. 220 Georges Abi-Saab, “The Specificities of Humanitarian Law,” in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 269. 221 Theodor Meron, “The Humanization of Humanitarian Law,” American Journal of International Law, Vol. 94, April 2000, p. 252.

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The supposition that individuals or NGOs have rights under some IHL provisions also finds support in the longstanding cross-fertilisation of humanitarian law and human rights law.222 Article 75 of Protocol I is, for example, directly inspired by Article 14 of the International Covenant on Civil and Political Rights.223 Due process guarantees, as specified in this article, can be taken as conferring rights on individuals, given that these guarantees will become applicable only in a judicial context.224 From case law, it may be inferred that the Law of the Hague also endows individuals with rights. The Nuremberg trials demonstrate that international law’s practise establishes individual rights and provides procedures for enforcing these rights.225 In addition, in its judgement of 6 July 2000, the Amsterdam District Court (Netherlands) implicitly recognised the notion of individual rights in this branch of law.226 The academic literature has therefore argued that the Geneva Conventions grant rights of a dual nature, in that they belong to the State and the NGO

222 The drafting of the Geneva Conventions was influenced by the humanitarism trends, which also resulted in the Universal Declaration of Human Rights. Additional Protocol II applicable to non-international conflicts also refers in its preamble to the close relationship between human rights and humanitarian law: “[r]ecalling (. . .) that international instruments relating to human rights offer a basic protection to the human person” and “[e]mphasizing the need to ensure a better protection for the victims of those armed conflicts.” The Protocol has also copied a number of human rights provisions into its text (in particular Articles 4 and 6 of Additional Protocol II): see Liesbeth Zegveld, “Remedies for victims of violations of international humanitarian law,” International Review of the Red Cross, Vol. 85, No. 851, September 2003, p. 505. 223 Commentary Article 75 of Protocol I, p. 879. 224 René Provost, International Human Rights and Humanitarian Law, op. cit., p. 32. 225 Mark Weston Janis, “Individuals as Subjects of International Law,” Cornell International Law Journal, Vol. 17, 1984, p. 73. 226 The plaintiffs invoked alleged violations of Additional Protocol I’s Article 52, which sets forth rules on the protection of civilian objects, during NATO’s bombing of the FRY as a basis for compensatory claims against members of the Dutch government. The court rejected this claim because, in its view, such violations had not occurred. But, while confining the right to invoke the rules to those who personally were the victims of violations of humanitarian law, the court recognised the possibility of deriving individual rights from international humanitarian law rules: Gerechtshof Amsterdam, Vierde meervoudige burgerlijke kamer, Dedovic v. Kok et al., Judgement of 6 July 2000, para. 5.3.22, as cited in Liesbeth Zegveld, “Remedies for victims of violations of international humanitarian law,” op. cit., p. 504.

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protected.227 Other scholars have contested that the use of the word “right” is conclusive as to the nature of norms created by the Geneva Conventions.228 These scholars argue that IHL norms are standards of treatment of conduct rather than rights of protected persons. The most logical position is however the one expressed by the ICTY Trial Chamber, which stated that the ICRC is capable of possessing international rights229 as its functions and tasks are directly derived from the Geneva Conventions and Additional Protocols.230 “International rights” derived from international treaties are therefore directly applicable to NGOs. 3.2 Enforcement of These Rights 3.2.1 The Right to a Remedy Remedies may be internal or international, the latter being complementary to the former. Both types of remedy will depend on the manner in which these norms are incorporated into municipal law.231

227 Georges Abi-Saab, “The Specificities of Humanitarian Law,” in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, op. cit., p. 269; Commentary Article 8 of the Fourth Geneva Convention, pp. 77–78; Yoram Distein, “Human Rights in Armed Conflict: International Humanitarian Law,” in Theodor Meron, Human Rights in International Law, Oxford University Press, Oxford, 1984, p. 345; Christopher Greenwood, “Rights at the Frontier: Protecting the Individual in Time of War,” in Barry Rider (ed), Law at the Centre—The Institute of Advanced Legal Studies at Fifty, Kluwer Law International, London, 1999, p. 282; RenéJean Wilhelm, “Le caractère des droits accordés à l’individu dans les Conventions de Genève,” Revue internationale de la croix-rouge, No. 380, août 1950, pp. 561–562. 228 Michael Arkehurst, A Modern Introduction to International Law, Routledge, London, 1987, p. 73; René Provost, International Human Rights and Humanitarian Law, op. cit., pp. 29–34 (both argue that the use of the word “rights” in these provisions is not by itself conclusive as to the nature of the norms created by the Conventions). Maresca refers to the common Articles 6/6/6/7 and 7/7/7/8 to mean that only States have rights and that no legal relation is created between the detaining State and prisoners of war: Adolfo Maresca, La protezione internatzionale dei combatenti e dei civili, Giuffrè, Milan, 1965, pp. 37–38. 229 ICTY, Trial Chamber, Prosecutor v. Simic and al, Decision on the prosecution motion under rule 73 for a ruling concerning the testimony of a witness, 27 July 1999, para. 72. 230 Ibid., para. 46. 231 Oscar Schachter, “International Law in Theory and Practice,” RCADI, Vol. 178, 1982–5, pp. 232–233; René Provost, International Human Rights and Humanitarian Law, op. cit., p. 44. But in the decision Filartiga v. Pena-Irala in the United States, in which the victim was recognised a right to sue his torturer for violation of the customary international prohibition of torture: 630 F.2d 876, Second Circle, 1980.

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Rights under IHL are supported by enforcement mechanisms in the 1906 and 1929 Geneva Conventions and the 1907 Hague Convention.232 The 1949 Geneva Conventions’ mechanisms are more developed and for the most part take into account the procedures established under criminal humanitarian law.233 In addition, common Article 2(3) of the 1949 Geneva Conventions provides for the application of the Conventions between parties involved in a conflict, even if one of the belligerents is not a party to the Convention, and specifies that the belligerents “shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof,” that is, if that power accepts the Convention for the specific conflict only.234 The International Court of Justice held common Article 1 to the 1949 Geneva Conventions, which provides that “[t]he High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances,” to be declaratory of customary law.235 In addition, Article 91 of Protocol I provides that a State shall pay compensation for violations of the provisions of the Conventions or of the Protocol. The Hague Convention on Protection of Cultural Property in the Event of Armed Conflict of 1954 similarly imposes penal or disciplinary sanctions upon persons who commit a breach of the Convention.236 In addition, the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims 232 See Article 28 of the 1906 Geneva Convention: “In the event of their military penal laws being insufficient, the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of robbery and ill treatment of the sick and wounded of the armies”; Article 3 of the Hague Convention IV of 1907: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation.” See also the Articles on the Protecting Powers in the 1929 Convention on Prisoners of War (Articles 42 and 86), and Articles 29 and 30 of the 1929 Convention on Sick and Wounded, which plans for appropriate legislatures for the repression of any act contrary to the provisions of the Convention and for a possible enquiry in case of alleged violation of the Convention. Despite some indications in the preparatory works of the 1907 Hague Convention IV that the obligation to compensate imposed by Article 3 could have been intended to benefit individuals as well as States, subsequent practise indicates a consideration of State claims only. 233 See the following section on individual criminal responsibility. 234 Theodor Meron, “The Humanization of Humanitarian Law,” American Journal of International Law, Vol. 94, April 2000, p. 249. 235 See Military and Paramilitary Activities in and against Nicaragua, Merits, 1986 ICJ Reports, p. 114. 236 Article 28 of the 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

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of Violations of International Human Rights and Humanitarian Law, adopted by the United Nations Commission on Human Rights at its 56th session in 2000,237 aims to provide victims of violations of humanitarian law with the right to a remedy. Recent developments toward an eventual right of compensation for victims of violations of IHL should also be taken into account. The UN Compensation Commission (UNCC) accepted claims of nationals, submitted by States, but based on the personal rights of individual victims for losses suffered in the wake of the Iraqi occupation of Kuwait in 1990.238 Although few claims have been presented based on violations of IHL, one panel of the Commission has awarded compensation for torture and beatings aimed at extracting information from prisoners of war.239 The Security Council, in creating the ICTY, specified that the work of the Tribunal would not in any way prejudice the right of victims to seek compensation for damages resulting from violations of IHL.240 Finally, Article 75 of the Statute of the International Criminal Court (ICC) provides that the Court might award reparations to the victims of international crimes falling under its jurisdiction, including war crimes. Rules 93–99 of the Rules of Procedures and Evidence, adopted by the Preparatory Commission of the ICC, detail some of the conditions for the granting of compensation to victims.241 3.2.2 Decisions from National Courts To date, States have been reluctant to entitle victims of violations of international humanitarian law to reparations.242 237 United Nations Commission on Human Rights, UN Doc. E/CN.4/2000/62, 18 January 2000. 238 UNCC, Decision 1 Criteria for Expedited Processing of Urgent Claims, 2 August 1991, UN Doc. S/AC.26/Dec.1, paras. 19–20. 239 UNCC, Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category “B” Claims), 15 December 1994, UN Doc. S/AC.26/1994/4, para. 14. 240 Security Council, Res. 827, 1993, para. 7. This was articulated in Rule 106 (Compensation to Victims) of the Rules of Procedure and Evidence of the ICTY, directing the Tribunal’s Registrar to transmit to national authorities the decision finding an accused guilty of a crime having caused an injury to a victim, and providing that a victim can bring an action in a national court or other competent body to obtain compensation. 241 Report of the Preparatory Commission for the International Criminal Court, Addendum (Finalised Draft Text of the Rules of Procedure and Evidence), UN Doc. PCNICC/2000/ INF/3/Add.1. 242 Liesbeth Zegveld, “Remedies for victims of violations of international humanitarian law,” International Review of the Red Cross, Vol. 85, No. 851, September 2003, pp. 497–526.

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Only a few national courts have acknowledged the possibility for individuals or groups of individuals to bring claims on the basis of the Geneva Conventions. For example, in a case before an American Court, it was recognised that a prisoner of war who felt his rights under the Geneva Convention had been violated could complain to representatives of the Protecting Power or humanitarian organisations under Article 78 of the Third Geneva Convention. The Court did not, however, specify which humanitarian organisations are concerned.243 In another case, the US Second Circuit Court stated that a suit could be brought by an individual pursuant to the Alien Tort Claims Act for violations of common Article 3 of the Geneva Conventions.244 In a judgement of the Hellenic Supreme Court, several individuals were also awarded compensation for the murder and destruction of private property by German soldiers in 1944.245 Several national courts have, however, rejected the idea that individuals and non-State actors could be granted direct rights in international humanitarian law. Two American courts rejected this possibility in the cases American Baptist Churches in the U.S.A. v. Meese,246 and United States v. Noriega and Others.247 243 United States v. Noriega, United States District Court, Southern District of Florida, 8 December 1992, in E. Lauterpacht and C. J. Greenwood (eds.), International Law Reports, Cambridge, Grotius Publications, Vol. 99, 1994, pp. 187–188. 244 Kadic v. Karadzic, 70 F.3d 232, 64 USLW 2231, United States Court of Appeals, Second Circuit, 13 October 1995, pp. 242–243. 245 Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000, Hellenic Supreme Court, Judgement, 4 May 2000, cited in American Journal of International Law, Vol. 95, 2001, pp. 198–204. 246 In this case, the plaintiffs were Salvadoran and Guatemalan aliens in the United States facing deportation to their respective countries of origin. They claimed they were entitled to a “temporary refuge in (the United States) until the internal armed conflict in their homelands ceases or they are resettled in a third country.” They contended the conditions in their homelands violated article 3 of the Fourth Geneva Convention, which “prescribes the protections that must be provided to civilians during non-international armed conflict.” Plaintiffs reasoned that “by deporting Salvadorans and Guatemalans to countries where article 3 violations are occurring, the United States has failed to ‘respect and ensure respect’ for the Convention within the meaning of article 1.” The Court rejected the argument, holding that article 1 of the Fourth Geneva Convention does not confer any rights on private litigants. It found that this article “does not impose any specific obligations on the signatory nations, nor does it provide any intelligible guidelines for judicial enforcement:” American Baptist Churches in the U.S.A. v. Meese, in E. Lauterpacht, C. J. Greenwood and A. G. Oppenheimer (eds.), International Law Reports, Vol. 104, Grotius Publications, Cambridge, 1997, p. 84. 247 The court stated that a treaty could only be create enforceable private rights if it expressly or impliedly provided for such a right. The Court decided that the claimant had no

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This latest decision was however modified in appeal.248 In general, rejection of the claim is based on the fact that humanitarian law is not self-executing and therefore does not form part of domestic law in the concerned country. This was the case in Leo Handel et al v. Andrija Artukovic,249 where a US District Court rejected a claim based on the 1907 Hague Convention IV and the 1929 Geneva Prisoners of War Convention. This position of US courts toward the self-executing character of humanitarian law was recently confirmed in Hamdi v. Rumsfeld.250 An English court also declared that the Geneva Convention was not a source of rights and obligations in domestic law.251 The Supreme Court

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standing to bring an action based on the Third Geneva Convention (ask for prisoner of war status) as it was not a self-executing treaty: United States v. Noriega and Others, United States District Court, Southern District of Florida, 8 June 1990, in E. Lauterpacht and C. J. Greenwood (eds.), International Law Reports, Vol. 99, Grotius Publications, Cambridge, 1994, pp. 175–182. The Court of Appeal decided that as the Convention formed part of the law of the United States. However, Congress had not enacted any implementing legislation, and in its absence, an individual could only enforce the provisions of a treaty if the treaty expressly or impliedly provided a right of action. The objective of the Geneva Convention had been to protect prisoners of war from inhumane treatment. It would therefore be inconsistent with that objective to hold that the rights provided for in the Convention could not be enforced by an individual prisoner of war in a court of law: United States v. Noriega, United States District Court, Southern District of Florida, 8 December 1992, in International Law Reports, Vol. 99, op. cit., pp. 187–192. After having set forth the conditions for treaty provisions to be self-executing and to provide a private right of action, the Court rejected the self-executing character of the invoked provisions: Leo Handel et al. v. Andrija Artukovic on behalf of himself and as representative of the Independent Government of the State of Croatia, US District Court for the Central District of California US 601 f. Supp. 1421, Judgement of 31 January 1985, reproduced in M. Sassòli and A. Bouvier (eds), How Does Law Protect in War, ICRC, Geneva, 1999, pp. 713–719. In its decision of 8 January 2003, the US Court of Appeals for the Fourth Circuit ruled that: “the language in the Geneva Convention is not ‘self-executing’ and does not ‘create private rights of action in the domestic courts of the signatory countries’:” US Court of Appeals for the Fourth Circuit, 8 January 2003, International Legal Materials, Vol. 42, 2003, p. 197. The case was involving a British citizen who was detained by the United States of America at Guantanamo Bay, and claimed to have a prisoner of war status. The Court stated that rights and duties which existed only as between States on the plane of international law were not enforceable at the suit of individuals in a domestic court. The Court stated that it could not grant a declaration regarding whether or not the claimant was a prisoner of war, as the Third Geneva Convention was not part of United Kingdom law and was not enforceable in an English court. Regina (Abbasi and Juma) v. Secretary of State for

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of Israel also considered that the rule prohibiting deportations in Article 49 of the Fourth Geneva Convention could not be enforced by an Israeli court.252 Similar jurisprudence can be found in Japanese courts.253 Insofar as domestic courts have denied individuals/organisations rights under humanitarian law, their decisions should be discarded in international law. Not only do the Geneva Conventions expressly recognise primary rights, but humanitarian law also contains the possibility of private rights to compensation, i.e. in Article 3 of the 1907 Hague Convention IV and Article 91 of Protocol I.254 Moreover, as Paust pointed out in the case Hamdi v. Rumsfeld, “The Fourth Circuit panel’s reasoning missed the point that a treaty can be partly non-self-executing for one purpose but still be directly operative for another, such as for use defensively or for habeas corpus purposes.”255 In addition, when a treaty provides individual rights, it should be self-enforcing. The academic literature in general considers that treaties designed to protect individuals/

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the Foreign and Commonwealth Office and Secretary of State for the Home Department, England, High Court, Queen’s Bench Division (Administrative Court), 15 March 2002, in E. Lauterpacht, C. J. Greenwood and A. G. Oppenheimer (eds.), International Law Reports, Vol. 123, Grotius Publications, Cambridge, 2003, pp. 600–601 and 604. This treaty provision cannot be enforced by an Israeli court, because “an international treaty does not become part of Israeli law unless (1) its provisions are adopted by way of legislation and to the extend that they are so adopted, or, (2) the provisions of the treaty are but a repetition or declaration of existing customary international law, namely, the codification of existing custom:” Affo and Another v. Commander Israel Defence Force in the West Bank (HC 785/87), Rafia and Another v. Commander Israel Defence Force in the Gaza Strip and Another (HC 845/87), Hindi v. Commander Israel Defence Force in the Judea and Samaria Region (HC 27/88), Israel, Supreme Court sitting as the High Court of Justice, 10 April 1988, in E. Lauterpacht and C. J. Greenwood (eds.), International Law Reports, Vol. 83, Grotius Publications Limited, Cambridge, 1990, p. 154. The plaintiffs of the first case were women survivors of military sexual slavery all claiming legal State compensations and apology from the government, argued that individual victims have a right to claim compensation under international customary law and under Article 3 of the Hague Convention applicable at the time of World War II. The Japanese courts denied the existence of such a right both under the said Article 3, and under customary international law. Other such cases are those of English and Dutch prisoners of war. See the correspondents’ reports in Hideyuki Kasutani and Seigo Iwamoto, “Japan,” in Yearbook of International Humanitarian Law, Vol. 3, 2000, p. 543; Hideyuki Kasutani, “Japan,” in Yearbook of International Humanitarian Law, Vol. 2, 1999, pp. 389–390. Liesbeth Zegveld, “Remedies for victims of violations of international humanitarian law,” op. cit., p. 512. Jordan Paust, “Judicial power to determine the status and rights of persons detained without trial,” Harvard International Law Journal, Vol. 44, No. 2, 2003, p. 515.

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groups of individuals’ rights, like the four Geneva Conventions, are self-executing.256 In the Nicaragua case, the Court held that common Articles 1 and 3 of the Geneva Conventions constitute general principles of humanitarian law that are binding on the United States.257 3.3 Conclusion on Direct Rights for NGOs Some scholars argue that NGOs or individuals do not have rights under international humanitarian law because they lack the power to enforce these rights. As stated by Oppenheim, the existence of legal rights has often been seen as closely connected with the question of whether the rights-holder has access to a legal remedy in case of a violation of the right.258 The classic model does not deny, however, that NGOs may be the direct beneficiaries of obligations imposed on States by international law.259 The fact that NGOs or individuals do not under international law have what might be called remedial rights does not imply that they have no rights.260 Other scholars and courts hold that NGOs and individuals may be said to have a right even if the legal system does not recognise their power to initiate legal actions or otherwise obtain relief at their own behest.261 The Permanent Court of International Justice stated that: “It is scarcely necessary to point out 256 Richard Lillich, “Invoking International Human Rights Law in Domestic Courts,” University of Cincinnati Law Review, Vol. 54, 1985 p. 367; Jordan Paust, “Self-Executing Treaties,” American Journal of International Law, Vol. 82, 1988, p. 760; Stefan Riesenfeld, “The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at any Price?,” American Journal of International Law, Vol. 74, 1980, p. 892; Andrew Scoble, “Enforcing the Customary International Law of Human Rights in Federal Court,” California Law Review, Vol. 74, 1986, p. 127; Carlos Vazquez, “Treaty-Based Rights and Remedies of Individuals,” Columbia Law Review, Vol. 92, 1992, p. 1082. 257 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), Merits, 1986, ICJ Reports, p. 14, para. 177. 258 Anna-Karin Lindblom, Non-Governmental Organisations in International Law, Cambridge University Press, Cambridge, 2005, p. 130. See for example Malanczuk: “One way of proving that the rights of individuals or companies exist under international law is to show that the treaty conferring the rights gives the individuals of companies access to an international tribunal in order to enforce their rights:” Peter Malanczuk, Akehurst’s Modern Introduction to International Law, seventh edition, Routledge, London, 1997, p. 101. 259 Carlos Manuel Vazquez, “Treaty-Based Rights and Remedies of Individuals,” op. cit., p. 1087. 260 Ibid., p. 1089. 261 Hersch Lauterpacht, International Law and Human Rights, Garland Publishing, New York, 1973, pp. 27–29; Louis Henkin, “International Human Rights as “Rights,” Cardozo Law Review, Vol. 1, 1979, p. 446.

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that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself.”262 As Professor Hersh Lauterpacht wrote, individuals have rights under international law even if they cannot by themselves take steps to enforce them.263 This is particularly true for the rights recognised in the Geneva Conventions and Protocols.264 As seen earlier, the Court in the Reparations’ opinion held that the UN has the capacity to prosecute. This statement seems to suggest that the right to espouse an international claim is an inherent consequence of the possession of international personality. The Court then continued in support of the existence of such a right by reference to the implied powers doctrine. The ICJ in the Reparations opinion was not, however, suggesting that the UN had a right to bring a contentious claim in any particular forum: Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute.265 The Court appears to have recognised that procedural incapacity is not a bar to the possession of international personality and of international rights and duties more generally.266 Therefore, the acquisition of rights by NGOs in 262 Appeal from a Judgement of the Hungaro-Czechoslovak Mixed Arbitral, Peter Pizminy Univ. v. Czechoslovakia, 15 December 1933, PCIJ, series A/B, No. 61, p. 231. 263 “The existence of a right and the power to assert it by judicial process are not identical. In the municipal sphere there are persons, such as minors and lunatics, who though endowed with rights are unable to assert them by their own action:” Hersch Lauterpacht, “The Subjects of the Law of Nations,” Law Quarterly Review, No. 63, 1947, p. 455, as cited by Anna-Karin Lindblom, Non-Governmental Organisations in International Law, op. cit., p. 130. See also Hersh Lauterpacht, International Law and Human Rights, Praeger, London, 1950, p. 27. 264 George H. Aldrich, “Individuals as Subjects of International Humanitarian Law,” in Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century, Essays in honour of Krzysztof Skubiszewski, Kluwer Law International, The Hague, 1996, p. 857. 265 Reparations for Injuries, op. cit., p. 177. 266 This approach, in which rights are held to exist irrespective of the availability of a remedy, is supported by numerous eminent scholars: see Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit., pp. 29, 31, 55, 57, 74 and 267; Rosalyn Higgins, Problems and Process: International Law and How We Use It, Clarendon Press, Oxford,

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international humanitarian law is not made dependent on the existence of an international remedy.267 The NGOs’ lack of procedural capacity to enforce a given right does not necessarily establish the non-existence of that right. Other actors, most often States, can act on behalf of the right-holder at the international level without transforming the nature of that right.268 Chapter 5 will further define the rights granted to NGOs in humanitarian law. However, different categories of legal capacities, such as procedural capacity, the capacity to conclude agreements under international law, and to stand before judicial and quasi-judicial bodies will not be examined. The focus will be on the various customary rights granted to NGOs acting in armed conflict. 4

The Sticks: With Power Comes Responsibility

4.1 Obligations Derived from IHL Treaties As the roles of NGOs increased, the issue of their accountability, both in academic literature and in practise, took on greater importance.269 In general, 1994, p. 53; Hersch Lauterpacht, “The Subjects of International Law,” in Elihu Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht, Cambridge University Press, Cambridge, 1970, Vol. 1, pp. 286–287. 267 Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit., p. 74. 268 René Provost, International Human Rights and Humanitarian Law, op. cit., p. 16. 269 See for exemple, Jem Bendell, Debating NGO Accountability. NGLS Development Dossier, United Nations, New York/Geneva, 2006; Robert Charles Blitt, “Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations and the Case for Regulation,” Buffalo Human Rights Law Review, Vol. 10, 2004, pp. 261–398; Erik. B. Bluemel, “Overcoming NGO Accountability Concerns in International Governance,” Brooklyn Journal of International Law, Volume 31, Winter 2005, pp. 139–206; Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit.; Steve Charnovitz, “Accountability of Public and Private International Organizations,” in Bob Reinalda (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, pp. 333– 346; Rebecca J. Cook, “Accountability in International Law for Violations of Women’s Rights by Non-State Actors,” Studies in Transnational Legal Policy, No. 25, 1993, pp. 93–115; Stephanie Farrior, “State Responsibility for Human Rights Abuses by Non-State Actors,” American Society of International Law Proceedings, 1998, pp. 299–302; Dorothea Hilhorst, “Being Good at doing Good? Quality and Accountability of Humanitarian NGOs,” Disasters, Vol. 26, No. 3, 2002, pp. 193–212; Chris Jochnick, “Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights,” Human Rights Quarterly, Vol. 21, No. 1, February 1999, pp. 56–79; Rachel Lord, “The Liability of Non-State Actors for Torture in Violation of IHL: An Assessment of the Jurisprudence of the International Criminal

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accountability refers to a process by which individuals or organisations are answerable for their actions and the consequences that follow on from them.270 Responsibility in international law is generally considered to mean a legal obligation that, if breached, can give rise to international consequences. The development of individual responsibility under international criminal law illustrates this point.271 International Law has not examined the accountability of NGOs. The International Law Commission has worked on a project to define the responsibility of international organisations, but it excludes NGOs.272 The fact that Tribunal for the Former Yugoslavia,” Melbourne Journal of International Law, 2003, Vol. 4, pp. 112–138; Michelle L. Mack, Compliance with IHL by Non-State Actors in NonInternational Armed Conflicts, in IHL Research Initiative, Reaffirmation and Development of IHL, available at www.ihlresearch.org; Jill Marshall, “Torture Committed by Non-State Actors : The Developing Jurisprudence from the Ad Hoc Tribunals,” Non-State Actors and International Law, Vol. 5, 2005, pp. 171–182; Jordan J. Paust, “Sanctions Against Non-State Actors for Violations of International Law,” ILSA Journal of International and Comparative Law, No. 8, 2001–2002, pp. 417–429; August Reinisch, “The Changing International Legal Framework for Dealing with Non-State Actors,” in Alston, Philippe (ed.), Non State Actors and Human Rights, Oxford University Press, Oxford, 2005, pp. 37–89; Nigel Rodley, “Human Rights NGOs: Rights and Obligations (Present Status and Perspectives),” in Van Boven, Theo, Flinterman, Cees, Grunfeld, Fred and Hut, Rita (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors, SIM Special No. 19, Utrecht, 1997, pp. 41–60; Jean-Christophe Rufin, “L’évolution de l’action humanitaire: vers le concept de normes,” in Etikuma 99, Colloque européen de l’éthique humanitaire (ed.), Les Codes de conduite: Référence éthique et gage d’efficacité pour les actions humanitaires internationales du IIIe millénaire?, Bioforce, Lyon, 2000, pp. 97–102; William A. Schabas, “Punishment of Non-State Actors in Non-International Armed Conflict,” Fordham International Law Journal, No. 26, 2002–2003, pp. 907–933; Peter J. Spiro, “The Democratic Accountability of Non-Governmental Organizations: Accounting for NGOs,” Chicago Journal of International Law, Vol. 3, Spring 2002, pp. 161–169; Liesbeth Zegvekd, “Accountability of Non-State Actors in International Law,” in Vuijlsteke, Marc, and Reh, Christine, and Reynolds, Christopher (eds.), Proceedings of the Bruges Colloquium, Relevance of IHL to Non-State Actors, 25th–26th October 2002, College of Europe, Brugge, No. 27, Spring 2003, pp. 143–166. 270 Hetty Kovach, “Adressing Accountability at the Global Level: The Challenges Facing International NGOs”, in Lisa Jordan and Peter Van Tuijl (eds.), NGO Accountability: Politics, Principles and Innovations, Earthscan, London, 2006, p. 196. 271 Robert McCorquodale, “The Individual and the International Legal System” in Malcolm Evans (ed.), International Law, Oxford University Press, Oxford, 2006, p. 314. 272 International Law Commission, Draft articles on the responsibility of international organizations, 2011. Special Rapporteur Giorgio Gaja explained that NGOs were not included in the study because “they do not generally exercise governmental functions and moreover

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International Law does not address the accountability of NGOs as clearly as States means that there is no unified framework of international accountability for all NGOs.273 At the international level, the responsibility of NGOs is not clear. Nevertheless, NGOs have legal responsibilities under the national laws of the different countries in which they are based and under the laws of the countries in which they operate. There are however arguments to hold non-State actors responsible at the international level, especially in the area of human rights and humanitarian law. Recently, specific obligations of non-State actors under international law have been identified from resolutions of the Security Council. The ICJ considered the question of whether Security Council resolutions may impose obligations on non-State actors and recalled that “it has not been uncommon for the Security Council to make demands on actors other than United Nations Member States and intergovernmental organizations”.274 In addition, there have been developments with regards to the imputability of the actions of non-State actors to States.275 The ICRC’s opinion if that all armed groups are bound by IHL, based on IHL’s direct applicability (provisions embodied in IHL treaties are binding not only upon the States party to this text but also upon the inhabitants of those States) and customary law.276 The same two reasons have been used to bind other non-State actors, such as multinational corporations.277 While ­treaties would not raise the key question of the responsibility of member States for the conduct of the organization”: Giorgio Gaja, First Report on Responsibility of International Organizations, UN Doc. A/CN.4/532, 26 March 2003, p. 12, para. 21. However, another ILC project on the protection of persons in the event of disasters refers to the rights of NGOs: see United Nations General Assembly, Report of the International Law Commission on the work of its sixty-third and sixty-fourth sessions, UN Doc. A/CN.4/657, 18 January 2013. 273 Steve Charnovitz, “Accountability of Public and Private International Organizations,” op. cit., p. 338. 274 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 51, para. 116. 275 Gleider I. Hernández, “Non-State actors from the perspective of the International Court of Justice,” in Jean d’Aspremont (ed.), Participants in the International Legal System, Routledge, London/New York, 2011, pp. 145–146. 276 Raphael Van Steenberghe, “Non-State actors from the perspective of the International Committee of the Red Cross,” in Jean d’Aspremont (ed.), Participants in the International Legal System, op. cit., pp. 213–224. 277 Peter Muchlinski, “Multinational Entreprises as Actors in International Law: Creating ‘Soft Law’ Obligations and ‘Hard Law’ Rights,” in Math Noortmann and Cedric Rayngaert (eds.), Non-State Actor Dynamics in International Law, From Law-Takers to Law-Makers, Asghate, Farnham/Burlington, 2010, pp. 9–40.

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only bind those who have ratified them, customary international law is binding non-State actors.278 As seen previously, rights granted under customary international law have a direct effect, and this is the same for obligations. The doctrine has also agreed that non-State actors are bound by IHL by reason of them being active on the territory of a Contracting Party.279 It is true that, even in international criminal law, the responsibility is individual and not collective. There are limited indications that entities, such as NGOs, incur criminal responsibility for violations of IHL.280 The doctrine has also contested the fact that States could encumber other legal persons with international legal duties without their consent.281 But the Geneva Conventions and Protocols refer both to individuals and to organisations, and therefore the individuality is not an obstacle. Moreover, there is a ‘capacity to fulfil obligations’, which was brought in by the ICJ in 1980: “Subjects of international law . . ., as such, are bound by any obligations incumbent upon them under general rules of international law.”282 NGO could therefore have the capacity to be held accountable for failure to fulfil those obligations to which they have been subjected.283

278 Theodor Meron, “The Continuing Role of Custom in the Formation of International Humanitarian Law,” op. cit., p. 247; Andrew Clapham, Human Rights Obligations of NonState Actors, op. cit., p. 19. 279 Cedric Ryngaert, “Non-State actors in International Humanitarian Law,” in Jean d’Aspremont (ed.), Participants in the International Legal System, op. cit., pp. 285–286; Program on Humanitarian Policy and Conflict Research/Graduate Institute of Inter­ national Studies, Empowered Groups, Tested Laws, and Policy Options. The Challenges of Transnational and Non-State Armed Groups, Harvard University/Geneva, November 2007, p. 32; Sandesh Sivakumaran, “Binding Armed Opposition Groups”, International Comparative Law Quarterly, Volume 55, April 2006, p. 369; Antonio Cassese, “The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts”, International and Comparative Law Quarterly, Volume 30, Issue 2, April 1981, pp. 416–439. 280 The personal jurisdiction of the international criminal tribunals and the ICC was limited to natural persons and the grave breaches provisions in the Geneva Conventions only refer to individual perpetrators: see Cedric Ryngaert, “Non-State actors in International Humanitarian Law,” in d’Aspremont, Jean (ed.), Participants in the International Legal System, op. cit., pp. 286–287. 281 Cedric Ryngaert, “Imposing International Duties on Non-State Actors and the Legitimacy of International Law,” in Math Noortmann and Cedric Rayngaert (eds.), Non-State Actor Dynamics in International Law, From Law-Takers to Law-Makers, Asghate, Farnham/ Burlington, 2010, pp. 69–90. 282 Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit., p. 65. 283 Ibid., p. 71.

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Obligations imposed on NGOs’ behaviour derive directly from the Geneva Conventions and Additional Protocols’ provisions. Several provisions of international humanitarian law treaties are limitations of rights granted to NGOs and civilians in general. Such limitations include, for example, the prohibition to commit acts harmful to the enemy and not to engage in abuse of the emblem (otherwise, the person will lose his or her protection). Other examples include the fact that adverse distinction in the application of international humanitarian law based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria is prohibited according to common Article 3 of the Geneva Conventions, as well in the Third and Fourth Geneva Conventions.284 It is recognised as a fundamental guarantee by Additional Protocols I and II.285 Nonetheless, NGOs recognised by international humanitarian law texts are to be ‘impartial’ and therefore cannot commit such acts of discrimination. If they do, they will no longer be entitled to the rights granted to them by the Geneva Conventions and Protocols.286 The concept of limitations of rights makes senses, if one considers that “international accountability can only be required from NGOs in combination with recognised rights under international law”.287 These obligations, as well as other duties mentioned in IHL treaties, will consequently be envisaged as limitations of rights and developed as such in Chapter 5. 4.2 Accountability Mechanisms: Humanitarian Codes of Conduct NGO codes of conduct have become a phenomenon in the humanitarian system in the past years. These codes are usually composed of principles or standards of performance to which a number of NGOs voluntarily assent and against which they are willing to be judged. Such initiatives include

284 Common Article 3 of the Geneva Conventions; Article 16 of the Third Geneva Convention; Article 13 of the Fourth Geneva Convention. 285 Article 75(1) of Additional Protocol I; Article 4(1) of Additional Protocol II. See also Articles 9(1), 69(1) and 70(1) of Additional Protocol I; Articles 2(1) and 18(2) of Additional Protocol II. 286 See Chapter 5. 287 Math Noortmann, “Non-State Actors in International Law” in Bas Arts, Math Noortmann and Bob Reinalda, Non-State Actors in International Relations, Ashgate, Aldershot, 2001, p. 72.

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general/global codes288 or national codes of conduct.289 The increased use of codes of conduct applicable to NGOs demonstrates an increased self-regulation instead of State regulation.290 The main justification from this view is that self-­regulation coming from the NGOs’ own initiative allows them to be more independent from States.291 Accountability of NGOs is not a straightforward concept. Consequently, codes can vary tremendously in approach. Nonetheless, this section will examine only codes of conduct that refer to, or are based on, international 288 The general codes include in particular the 1997 Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP), the 2002 Interaction NGO Field Cooperation Protocol, the 2003 People In Aid Code of Good Practice, the 2004 Australian Council for International Development Code of Conduct for Non Government Development Organisations, the 2005 Paris Declaration on Aid Effectiveness, the 2003 International Non-Governmental Organisations Accountability Charter, the 2003 Draft Code of Ethics and Conduct for African Civil Society Organizations, the 2003 Code of Good Practice for NGOs Responding to HIV/AIDS, and the 2002 World Association of Non-Governmental Organizations Code of Ethics and Conduct for NGOs. 289 2005 estimates suggest that self-regulatory initiatives are in operation in over 40 countries worldwide. See in particular The Caucus of Development NGO Networks, Code of Conduct for Development NGOs in the Philippines, 1991; Ministry of Health of Mozambique, Code of Conduct Governing the Partnership Between the Ministry of Health and Non-Governmental Organizations, 2005; Uganda National NGO Forum, NGO Code of Conduct, 25 April 2001; Botswana Council of Non-Governmental Organizations, Code of Conduct, 2001; South African National NGO Coalition, Code of Ethics for NGOs, 2001; Ad Hoc NGO Consultation Working Group, Code of conduct for NGOs in Ethiopia, 1997; Danish Committee for Aid to Afghan Refugees, Code of Conduct for NGOs engaged in Humanitarian Action, Reconstruction, and Development in Afghanistan, 1 June 2005; Caribbean Policy Development Centre, Code of Good Conduct for the guidance of all members and staff of Non Governmental Organisations throughout CARICOM and the wider Caribbean region; Policy Forum in Tanzania, NGO Code of Ethics, April 2007; Nango, Zimbabwe NGO Code of Ethics; Palestinian NGO Network, The Palestinian NGOs Code of Conduct, January 2008. In addition, the Commonwealth Foundation collected all existing codes in Commonwealth countries and in 1995 published its NGO Guidelines for Good Policy and Practise, the result of three years of research and consultation. The governments of the Commonwealth subsequently adopted these guidelines. 290 August Reinisch, “The Changing International Legal Framework for Dealing with NonState Actors,” in Philippe Alston (ed.), Non State Actors and Human Rights, Oxford University Press, Oxford, 2005, pp. 42–43. 291 Richard Fries, “The Legal Environment of Civil Society”, in Kaldor, Mary, Anheier, Helmut and Marlies Glasius (eds.), Global Civil Society 2003, Oxford University Press, Oxford, 2003, pp. 226–227.

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humanitarian law. It will not look at donor or corporate accountability or accountability through the United Nations.292 Indeed, a number of these codes refer to humanitarian law. The first obvious reason is that these codes apply to NGOs working in conflict situations. Another reason is that the principles of humanitarian action, derived from humanitarian law, can be considered the basis of humanitarian assistance. The last reason is that there was a need to restate the applicable principles of IHL in an increasingly difficult and complex context. Recent conflicts have often made the implementation of IHL extremely complicated, in particular as armed groups in current conflicts do not respect humanitarian law, and humanitarian aid can be manipulated.293 It was also necessary in a context where humanitarian organisations have become more diversified in their interpretations of principles (for example, in their interpretation of the principle of neutrality).294 4.2.1 The Humanitarian Accountability Partnership (HAP) Principles In response to criticisms of their accountability and transparency, humanitarian organisations have developed standards governing their operations.295 The Humanitarian Accountability Partnership (HAP) principles, developed by the organisation HAP in 2003, must be applied by all of its NGO ­members. 292 For a comprehensive review of these mechanisms, see Jem Bendell, Debating NGO Accountability, United Nations—Non-Governmental Liaison Service, New York/Geneva, 2006; Michael Edwards and David Hulme (eds.), Non-Governmental OrganisationsPerformance and Accountability Beyond the Magic Bullet, Earthscan Publications and Save the Children, London, 1995; Jens Steffek and Kristina Hahn, Evaluating Transnational NGOs: Legitimacy, Accountability, Representation, Palgrave Macmillan, Basingstoke, 2010. See also Carew Boulding, “Dilemnas of information and accountability: foreign aid donors and local development NGOs,” in Peter A. Gourevitch, David A. Lake and Janice Gross Stein, The Credibility of Transnational NGOs: When Virtue is Not Enough, Cambridge University Press, Cambridge/New York, 2012, pp. 115–136. 293 Nick Leader, “Codes of Conduct: Who Needs Them?,” op. cit.; Koenraad Van Brabant, “Etat des lieux des Codes de conduite et bonnes pratiques dans l’action,” in Etikuma 99, Colloque européen de l’éthique humanitaire (ed.), Les Codes de conduite: Référence éthique et gage d’efficacité pour les actions humanitaires internationales du IIIe millénaire?, Bioforce, Lyon, 2000, pp. 27–38. 294 Dorothea Hilhorst, “Being Good at Doing Good? Quality and Accountability of Humanitarian NGOs,” Disasters, Vol. 26, No. 3, 2002, p. 195. 295 B. K. Woodward, “Global Civil Society and International Law in Global Governance: Some Contemporary Issues,” International Community Law Review, Vol. 8, Nos. 2–3, September 2006, p. 352.

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The qualifying norms are four important criteria that agencies must meet before they can apply for HAP Certification. They are: humanitarian impartiality,296 not-for-profit status,297 financial accountability, and a publicly available humanitarian accountability framework.298 Therefore, at the application stage, an agency must provide evidence that it is committed to the principle of humanitarian impartiality,299 and has a non-profit status.300 296 “HAP’s principles for humanitarian work are derived mainly from the Fundamental Principles of the Red Cross movement, proclaimed in Vienna in 1965 and the result of a century of work in humanitarian crises. These principles affirm the essential importance of ‘humanity’, i.e. the belief that all human beings have an inalienable and equal right to live in dignity. Humanitarianism is thus concerned with the prevention and alleviation of human suffering, wherever it occurs, and the right of all persons to receive and give assistance. Impartiality means providing humanitarian assistance in proportion to need and with respect to urgency, and without discrimination based on gender, age, race, impairment, ethnicity, or nationality, or because of political, religious, cultural, or organisational affiliation. In other words, there should be no social, political, cultural, or religious bias or prejudice in the delivery of aid:” HAP International, The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, Oxfam Publishing, Oxford, 2008, p. 13. 297 “A not-for-profit organisation is one that is established for charitable, humanitarian, or educational purposes and which has no intent to make profits from its programme for its staff, members, or any other shareholders/stakeholders. The not-for-profit principle is comparable with the Red Cross principle of ‘voluntary service’, or selflessness. (. . .) A not-for profit humanitarian agency is concerned only with the humanitarian interests of the persons who require help:” HAP, The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, op. cit., p. 15. 298 “A humanitarian accountability framework consists of a list of the minimum standards that an agency commits to meeting in its humanitarian work, an implementation plan for achieving these, and an explanation of the means available for stakeholders to hold it to account for these:” HAP, The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, op. cit., p. 19. 299 “This may be found in the organisation’s statutes, constitution, charter, or mandate. If no such reference exists, the governing body of the agency will have to make a formal declaration of its commitment to humanitarian impartiality:” The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, op. cit., p. 14. 300 “An agency must provide evidence of its registration as a not-for-profit body in its ‘home’ country and a formal declaration of not-for-profit status in the countries where it conducts humanitarian activities. This will require submission of relevant registration documents given by government authorities, annual accounts, or in exceptional circumstances where no such documents exist, a signed statement by the agency’s governing body confirming its not-for-profit status:” The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, op. cit., p. 16.

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HAP also developed Principles for Humanitarian Action. These principles contain ‘fundamental principles’ that are specific to the Movement, that is, impartiality, humanity, voluntary service, independence and neutrality. The HAP Principles exclude two of the Movement principles (unity and universality), while adding five accountability-related principles (informed consent, duty of care, witness, transparency, and complementarity). The HAP Accountability Framework considers as primary principles the principles of impartiality and humanity and the other principles are secondary or tertiary.301 There are now more than 20 members of HAP.302 4.2.2 Code of Conduct for the Movement and NGOs in Disaster Relief In 1991, at the Council of Delegates of the IFRC and the ICRC, the French Red Cross Society sponsored a decision calling on the Federation to convene a group of experts to study the possibility of elaborating a code of conduct for NGOs in disaster situations.303 The Code was agreed upon by eight agencies in 1994.304 In 1995, a resolution passed by the 26th Conference of the Red Cross and Red Crescent took note of and welcomed the Code.305 The Code was developed in an effort to establish a body of professional standards to guide humanitarian work. The Code of Conduct is voluntary and lays down 10 points of principle, which all NGOs should adhere to in their disaster response work. Among these commitments are humanitarian imperatives, impartiality, neutrality, respect for culture and custom, local empowerment, participation of beneficiaries, reduction of future vulnerabilities to disaster,

301 The Guide to the HAP Standard, Humanitarian Accountability and Quality Management, op. cit., pp. 31 and 123. 302 The full members of HAP as at July 2008 are: Action by Churches Together, Agence d’Aide à la Coopération Technique Et au Développement (ACTED), Australian Council for International Development, CAFOD, CARE International, Christian Aid, Church World Service Pakistan/Afghanistan, COAST Trust, Concern Worldwide, Coordination of Afghan Relief, DanChurchAid, Danish Refugee Council, Lutheran World Federation, Medair, Medical Aid for Palestinians, Mercy Malaysia, Merlin, Muslim Aid, Norwegian Refugee Council, Office Africain pour le Développement et la Coopération, Oxfam GB, Save the Children UK, Sungi Development Foundation, Tearfund, Women’s Commission for Refugee Women and Children and World Vision International. 303 Peter Walker, “Cracking the Code: the Genesis, Use and Future of the Code of Conduct,” Disasters, Vol. 29, No. 4, December 2005, p. 326. 304 The Code of Conduct is available on the website of the Federation, at: http://www.ifrc.org. 305 Peter Walker, “Cracking the Code: the Genesis, Use and Future of the Code of Conduct,” op. cit., p. 327.

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accountability, and respect for the dignity of the beneficiaries. In October 2008, 452 organisations had signed the Code.306 The Code has had three main positive results in the last years: it guided the behaviour of humanitarian workers, raised awareness on humanitarian law principles, and paved the way for the Sphere project.307 It also represented a crystallisation of common thinking on humanitarian aid.308 For this reason, numerous local codes in conflict areas are at least partially inspired by this Code and incorporate the same principles. But there have been drawbacks. First, the Code did not incorporate a mechanism for accountability or monitoring. Second, despite a broad level of acceptance, the Code did not always play a vigorous role.309 Third, the principle of neutrality has not always been respected and it has been stated that this principle should be made clearer in the Code.310 4.2.3 Sphere The Humanitarian Charter of Sphere, developed by a group of humanitarian NGOs and the Red Cross and Red Crescent movement, is based on the principles and provisions of international humanitarian law, international human rights law, refugee law, and the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organisations in Disaster Relief. The Charter describes the principles that govern humanitarian action and points out the legal responsibilities of States and warring parties to guarantee the right to protection and assistance.311 The Charter states that humanitarian agencies will act in accordance with the principles of humanity and impartiality, and with the other principles set out in the Code of Conduct in Disaster Relief.312 In addition, the Charter refers to the international humanitarian 306 The list of signatories is available on the website of the Federation, at: http://www.ifrc.org. 307 Peter Walker, “Cracking the Code: the Genesis, Use and Future of the Code of Conduct,” op. cit., p. 327. 308 Dorothea Hilhorst, “Dead Letter or Living Document? Ten Years of Code of Conduct for Disaster Relief,” Disasters, Vol. 29, No. 4, December 2005, p. 353. 309 Dorothea Hilhorst, “Dead Letter or Living Document? Ten Years of Code of Conduct for Disaster Relief,” op. cit., p. 352. 310 Peter Walker, “Cracking the Code: the Genesis, Use and Future of the Code of Conduct,” op. cit., pp. 323–336; Dorothea Hilhorst, “Dead Letter or Living Document? Ten Years of Code of Conduct for Disaster Relief,” op. cit., pp. 359–361. 311 The Sphere Project, Humanitarian Charter and Minimum Standards in Disaster Response, the Sphere Project, Geneva, 2004, p. 5. 312 Ibid., pp. 16–17.

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law distinction between combatants and non-combatants, which should be respected in times of armed conflict.313 Sphere also includes the principles of life with dignity,314 and non-refoulement. Sphere has a rights-based approach in other respects; that is, it suggests human rights standards are useful in humanitarian action.315 In the World Disaster Report 2000, an article suggested that the Sphere’s minimum standards were a possible “body of customary international law in the making,” provided that several important questions are solved (including the question whether these standards are operational or absolute and how they could be enforced).316 The Sphere Board, which is responsible for project oversight, includes a number of NGOs.317 4.2.4 National Initiatives Country-specific codes are generally concerned with dealing with the specific problems of a particular operation. Most draw on the Code of Conduct for the Movement and NGOs in Disaster Relief.318 In addition, a number of country specific codes have an explicit objective to influence the behaviour not only of humanitarian agencies but also of the warring parties.319 313 Ibid., p. 17. 314 Articles 3 and 5 of the Universal Declaration of Human Rights 1948; Articles 6 and 7 of the International Covenant on Civil and Political Rights 1966; common Article 3 of the four Geneva Conventions of 1949; Articles 23, 55, and 59 of the Fourth Geneva Convention; Articles 69 to 71 of Additional Protocol I of 1977; Article 18 of Additional Protocol II of 1977 as well as other relevant rules of international humanitarian law; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Articles 10, 11, and 12 of the International Covenant on Economic, Social, and Cultural Rights; Articles 6, 37, and 24 of the Convention on the Rights of the Child. 315 Dorothea Hilhorst, “Being Good at Doing Good? Quality and Accountability of Humanitarian NGOs,” op. cit., p. 195. 316 International Federation of the Red Cross and Red Crescent Societies, World Disasters Report 2000, IFRC, Geneva, 2000, pp. 145–157. 317 Action Aid, Action by Churches Together, World Council of Churches, Agency Coordinating Body for Afghan Relief, Aktion Deutschland Hilft, CARE International, InterAction, International Council of Voluntary Agencies, International Federation of Red Cross and Red Crescent Societies, International Rescue Committee, Lutheran World Federation, OXFAM GB, Policy Action Group on Emergency Response, World Vision International, Comision Cristiana de Desarrollo, Salvation Army, Save the Children Federation Inc. 318 Nick Leader, “Codes of Conduct: Who Needs Them?,” op. cit. 319 The Ground Rules were signed by the SPLA and were intended to promote the SPLA’s respect for international humanitarian and human rights law. The Sierra Leone code

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The Humanitarian Assistance in Liberia Principles and Protocol for Operation320 of November 1996 refers to the principles of impartiality, neutrality, and independence. The Protocol also addresses the question of armed escorts, payment for access to areas in Liberia, safety of staff and property, and solidarity between NGOs. The Liberia Protocol served as a basis for the 1998 Code of Conduct for Humanitarian Agencies in Sierra Leone.321 This Code includes the principles of impartiality, humanity, neutrality, independence, and human dignity. The Code of Conduct’s goal was to reinforce a coordinated approach for the delivery of humanitarian assistance and ensure that the parties to the conflict recognise and observe humanitarian principles.322 The Code also includes humanitarian rules for agencies such as a “no-gun” policy, no bribery, and conditions for exceptional use of armed escorts. The Code of Conduct was adopted by over 40 NGOs.323 The 1998 Principles of Engagement for Emergency Humanitarian Assistance in the Democratic Republic of Congo324 was addressed to the international humanitarian community as well as to the political and military authorities in the DRC. General overarching principles are defined as impartiality, neutrality, independence, human rights, participation with local partners, coordination between agencies, transparency of humanitarian actors, and accountability. In addition, some general protocols are mentioned with regard to accessibility, security, and types of intervention, and monitoring and evaluation.325

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workshop had as one of its two objectives ‘To ensure that the parties to the conflict recognise and observe the impartiality and the inviolability of humanitarian principles’. The DRC code likewise is addressed to the warring parties and has been signed by them. Joint Principles of Operation of International Non-Government Humanitarian Agencies in Liberia, available at http://www.reliefweb.int. Sierra Leone Development Assistance Coordination Office (DACO), Code of Conduct for Humanitarian Agencies in Sierra Leone, Revised 21st November 1998, available at: http:// www.daco-sl.org. Paul Harvey, “The Sierra Leone Code of Conduct,” Humanitarian Exchange Magazine, No. 13, September 2000, available online at: http://www.odihpn.org/. Paul Harvey, “The Sierra Leone Code of Conduct,” op. cit., available online at: http://www. odihpn.org/. OCHA, Principles of engagement for emergency humanitarian assistance in the Democratic Republic of Congo, 25 January 1999, available at: http://ochaonline.un.org. Frances Smith, “Principles of Engagement for Emergency Humanitarian Assistance in the DRC,” Humanitarian Exchange Magazine, No. 13, September 2000, available online at: http://www.odihpn.org/.

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4.2.5 Other Initiatives These new codes of conduct should be seen in light of the various initiatives that have taken place in the academic literature in the 1990s to address the question of humanitarian assistance and the norms applicable in times of conflict and emergency. The 1990 Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights in Turku, was the first such initiative in this respect.326 326 The Declaration is available on the website of the Institute of Human Rights at Åbo Akademi University: http://web.abo.fi/instut. See also Asbjørn Eide, Allan Rosas and Theodor Meron, “Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards,” American Journal of International Law, Vol. 89, No. 1, 1995, pp. 215–223; Hans-Peter Gasser, “A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct,” International Review of the Red Cross, No. 262, 1988, pp. 38–58; Hans-Peter Gasser, “New Draft Declaration of Minimum Humanitarian Standards,” International Review of the Red Cross, No. 282, 1991, pp. 328–329; HansPeter Gasser, “Humanitarian Standards for Internal Strife: A Brief Review of New Developments,” International Review of the Red Cross, No. 294, 1993, pp. 221–226; Stephen P. Marks, “Principles and Norms of Human Rights Applicable in Emergency Situations: Underdevelopment, Catastrophes and Armed Conflicts,” in Karel Vasak and Philip Alston (eds), The International Dimensions of Human Rights, Vol. I , Greenwood Press, Westport, 1982, pp. 175–212; Theodor Meron, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument,” American Journal of International Law, Vol. 77, 1983, pp. 589–606; Theodor Meron, “Towards a Humanitarian Declaration on Internal Strife,” American Journal of International Law, Vol. 78, 1984, pp. 859–868; Theodor Meron, “Draft Model Declaration on Internal Strife,” International Review of the Red Cross, No. 262, 1988, pp. 59–76; Theodor Meron and Allan Rosas, “A Declaration of Minimum Humanitarian Standards,” American Journal of International Law, Vol. 85, 1991, pp. 375–381; Djamchid Momtaz, “The Minimum Humanitarian Rules Applicable in Periods of Internal Tension and Strife,” International Review of the Red Cross, Vol. 38, 1998, pp. 455–462; David Petrasek, “Moving Forward on the Development of Minimum Humanitarian Standards,” American Journal of International Law, Vol. 92, 1998, pp. 557– 563; Allan Rosas, “Human Rights at Risk in Situations of Internal Violence and Public Emergency: Towards Common Minimum Standards,” in Asbjørn Eide and Jan Helgesen (eds), The Future of Human Rights Protection in a Changing World: Fifty Years since the Four Freedoms Address. Essays in Honour of Torkel Opsahl, Norwegian University Press, Oslo, 1991, pp. 165–181; Anna-Lena Svensson-McCarthy, “Minimum Humanitarian Standards: From Cape Town Toward the Future,” Review of the International Commission of Jurists, No. 53, 1994, pp. 1–29; Eva Tojzner, The Turku Declaration of Minimum Humanitarian Standards: An Attempt to Restrain Internal Strife, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, University of Lund, Faculty of Law, Lund, 28 October 1996; Jean-Daniel Vigny and Cecilia Thompson, “Fundamental Standards of Humanity: What Future?,” Netherlands Quarterly of Human Rights, Vol. 20, No. 2, 2002, pp. 185–199.

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Shortly thereafter, in 1993, a task force was formed by the Program on Humanitarian Assistance at the World Conference on Religion and Peace, to facilitate the formation of a new consensus on humanitarian aid in complex emergencies.327 Four meetings were held, resulting in the Mohonk Criteria for Humanitarian Assistance in Complex Emergencies. In this document, the Task Force calls upon the Member States of the United Nations to recognise the right to humanitarian assistance, ensure the right of access by humanitarian organisations to populations, reaffirm their commitment to international humanitarian and human rights law, and ensure the safety of humanitarian relief personnel. Principles mentioned in the Mohonk Criteria included the principles of humanity, impartiality, neutrality, independence, dignity, and local empowerment.328 The Humanitarianism and War Project, an independent policy research initiative based at Brown University, conducted interviews with participants in complex emergencies in 1991 and identified several issues, which it then tried to address in a statement of principles in 1993. As a result, the Providence Principles consist of the following eight principles: relieving life-threatening suffering, proportionality to need, non-partisanship, independence, accountability, appropriateness, contextualisation, and subsidiarity of sovereignty. The first four principles are, in fact, direct interpretations of the principles of impartiality and neutrality.329 In 1996, John Prendergast’s study of humanitarian aid and conflict in Africa offered ten commandments for providing aid without sustaining conflict.330 The same year, Jacques Lebas of the University of Paris VI suggested five guiding principles of humanitarian action: even-handedness, universality, independence, ability, and witness.331

327 For the purposes of this document, a “complex emergency” was a humanitarian crisis which may involve armed conflict and which may be exacerbated by natural disasters. 328 For an analysis and copy of the document, see Jon M. Ebersole, “The Mohonk Criteria for Humanitarian Assistance in Complex Emergencies (Task Force on Ethical and Legal Issues in Humanitarian Assistance),” Human Rights Quarterly, Vol. 17, No. 1, February 1995, pp. 192–208. 329 Larry Minear and Thomas G. Weiss, Humanitarian Action in Times of War: A Handbook for Practitioners, Lynne Rienner Publishers, Boulder & London, August 1993. 330 John Prendergast, Frontline Diplomacy: Humanitarian Aid and Conflict in Africa, Lynne Rienner, Boulder/London, 1996. 331 Jacques Lebas, Humanitarian Principles: An Ethical Foundation For Action, Background Paper for the Forum on Ethics in Humanitarian Aid, Dublin 9–10 December 1996, ECHO, Dublin, 1996.

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These principles and other humanitarian principles mentioned in IHL treaties, in particular the principles of impartiality and humanity, are now broadly reflected in other guidelines on humanitarian action.332 4.2.6 Conclusion on Accountability of NGOs through Codes of Conduct Several field studies have been undertaken to evaluate the impact of these codes of conduct.333 The codes have been useful in raising awareness on standards at the technical level. On the negative side, these studies demonstrate, firstly, that the influence of the codes of conduct on actions of armed groups is very limited.334 Secondly, compliance mechanisms in the codes are frequently under-developed or under-used.335 Thirdly, to date codes of conduct have had a limited impact on NGO action and in particular, NGO staff have demonstrated a limited knowledge and understanding of international norms and principles.336 Criticisms of the codes of conduct include the fact that the standards in these codes are too high, or are too normative (killing the necessary flexibility of NGOs), or not normative enough (without implementation or monitoring mechanisms).337 NGOs also feel that the concepts of the codes of conduct are sometimes not applicable in practise, because, for example, it is difficult to remain neutral and impartial.338 332 See for example Principle 24 of the Guiding Principles on Internal Displacement (“All humanitarian assistance shall be carried out in accordance with the principles of humanity and impartiality and without discrimination”). 333 See for example the Joint Evaluation of Emergency Assistance to Rwanda (JEEAR) in 1994, and the evaluations undertaken by Interaction, the Disasters and Emergency Committee (DEC), the Overseas Development Institute (ODI), and several agencies members of People in Aid. 334 Koenraad Van Brabant, “Etat des lieux des Codes de conduite et bonnes pratiques dans l’action,” in Etikuma 99, Colloque européen de l’éthique humanitaire (ed.), Les Codes de conduite: Référence éthique et gage d’efficacité pour les actions humanitaires internationales du IIIe millénaire?, Bioforce, Lyon, 2000, pp. 29–30; Nick Leader, “Codes of Conduct: Who Needs Them?,” op. cit. 335 The Red Cross/NGO code, for example, has only had a handful of complaints in its five year history and as yet has no formal complaint or compliance mechanism. See Robert Lloyd and Lucy de las Casas, NGO Self-Regulation: Enforcing And Balancing Accountability, One World Trust, London, 11 August 2006, p. 3, available at: http://www.oneworldtrust.org. 336 Koenraad Van Brabant, “Etat des lieux des Codes de conduite et bonnes pratiques dans l’action,” op. cit., pp. 29–30. 337 Ibid., pp. 31–32. 338 “Il y a également comme une contradiction, un paradoxe, entre certains concepts des Codes de conduite comme l’impartialité et la neutralité et, par exemple, la participation

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In terms of international humanitarian law, the codes of conduct are an accurate reflection of the provisions of international humanitarian law. There are no real contradictions among the various codes previously mentioned in terms of the concepts of international humanitarian law. Further development of a common approach to the principles of humanitarian action is crucial if agencies are to reduce the likelihood that they will be manipulated or attacked during conflict situations. As Nick Leader stated, achieving this would require more work in terms of thinking through how to put principles and provisions, as opposed to standards, into practise. Codes are probably only part of the answer.339 Manuel Lopez of MSF rightly pointed out that there is no better code of conduct than the 1949 Geneva Conventions and that each NGO could simply agree to its principles and provisions rather than establishing their own individual codes of conduct.340 In all likelihood, raising awareness of the humanitarian law principles and provisions, as stated in the Geneva Conventions and Additional Protocols, would achieve the same result, while respecting the flexibility NGOs require.341 du personnel local ou des autorités locales avec lesquels nous devons travailler sur le terrain. (. . .) Tout cela est bien beau, mais en fin de compte, le problème est que dans la plupart des cas, l’aide humanitaire est manipulée tout comme l’est la distribution des secours”: Manuel Lopez, “Y a-t-il vraiment un intérêt d’adopter des Codes de conduite communs aux ONGs,” in Etikuma 99, Colloque européen de l’éthique humanitaire (ed.), “Les Codes de conduite: Référence éthique et gage d’efficacité pour les actions humanitaires internationales du IIIe millénaire?,” op. cit., p. 176. 339 Nick Leader, “Codes of Conduct: Who Needs Them?,” op. cit. 340 Manuel Lopez, “Y a-t-il vraiment un intérêt d’adopter des Codes de conduite communs aux ONGs,” op. cit., p. 176. 341 The use of codes of conduct or memorandum of understanding citing rules of IHL for armed non-State actors is a bit different, and their usefulness might be greater, taking into account that in non-international armed conflict, the armed group members have little legal incentive to comply with IHL, given the fact that they are likely to face severe penalty under the domestic law just for having participated in the conflict. See in this regard the statement of Michelle Mack at the Chatham House Conference presenting the ICRC Study: Chatham House, The Law of Armed Conflict: Problems and Prospects, Chatham House, 18–19 April 2005, Transcripts and summaries of presentations and discussions, pp. 65–66, available at: http://www.chathamhouse.org.uk/.

chapter 5

Customary Rights of NGOs in International Humanitarian Law This section examines the rights granted to NGOs according to IHL treaties and/or in virtue of customary law, including the limitations of these rights (which, to some extent, address accountability of NGOs in armed conflict situations). Rights can be granted to NGOs by treaties and/or in virtue of customary law.1 There are several reasons why only customary humanitarian law is examined here, in terms of rights granted to NGOs. First, in some countries, treaties require implementing legislation be a part of the law of the land and necessary implementing legislation has not been adopted. Second, if a norm reflects customary law, States cannot terminate their obligations by withdrawal (see the denunciation Article common to the four Geneva Conventions,2 and Articles 99 of Protocol I and 25 of Protocol II). Third, reservations to treaties would not affect the parties’ obligations regarding provisions reflecting customary law.3 Fourth, invocation of a norm as both conventional and customary adds 1 There are direct links between certain law-making treaties and custom. As the ICJ stated in the North Sea Continental Shelf, a treaty rule may be declaratory of custom at the time when the provision is adopted, crystallise custom, or serve to generate a rule of customary international law by subsequent practise of States. When a treaty codifies existing customary law, the substance of the obligations specified in the treaty may be binding on all States, because those States that are parties are bound by the obligations in the normal way since they are parties and States that are not parties are also bound by the obligations because they are rooted in customary law: North Sea Continental Shelf Cases (Federal Republik of Germany/Denmark; Federal Republik of Germany/Netherlands), Judgement, ICJ Reports 1969, paras. 62–65. 2 Article 63 of the First Geneva Convention; Article 62 of the Second Geneva Convention; Article 142 of the Third Geneva Convention; Article 158 of the Fourth Geneva Convention. 3 In its advisory opinion on Reservations to the Convention on Genocide, the ICJ stated that: “the object and (purely humanitarian and civilizing) purpose of the Convention . . . thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation:” 1951 ICJ Reports, p. 24. The ICJ adopted a slightly different position in the North Sea Continental Shelf case, stating that treaty clauses permitting reservations to specified provisions of the treaty normally imply

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strength to the claim that these obligations are not only contractual, but also obligations under general international law.4 Fifth, IHL custom may be opposable beyond States, to non-State actors and individuals.5 Sixth, some IHL treaties, like Additional Protocol II, have only been ratified by a few States. Finally, for some norms, customary law is bridging the gap between international and non-international armed conflicts.6 As seen previously, the various organisations mentioned in international humanitarian law treaties often fulfil similar criteria. Consequently, such organisations have been granted similar rights in international humanitarian law treaties.7 To identify these rights, the findings of the ICRC Study on Customary International Humanitarian Law will be largely used. 1

A Customary Right to Offer Services (“Right of Initiative”)

The right for NGOs to offer their services is a general rule, recognised in treaty law and in State practise. It is, however, subject to the consent of the State parties to the conflict.

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that such provisions are not declaratory of existing or emergent rules of customary law: 1969 ICJ Reports, p. 3. The list of reservations made by States to the Geneva Conventions and Additional Protocols is available on the ICRC’s website. The International Court of Justice claimed in the Hostages case that the obliga­tions that Iran breached were not merely contractual, but were also obligations under general international law: United States Diplomatic and Consular Staff in Tehran, 1980 ICJ Reports, p. 3, para. 95. See also Article 38 of the 1969 Vienna Convention on the Law of Treaties: “Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.” Daniel Bethlehem, “The methodological framework of the study,” in Elizabeth Wilmshurst and Susan Breau (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 8. The distinction between both types of conflicts still exists, although a number of international humanitarian law norms are increasingly applicable in both types of conflicts. See also Jean-Marie Henckaerts, “Etude du CICR sur le droit international humanitaire coutumier: objet, caractéristiques, conclusions et pertinence,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, Bruylant, Bruxelles, 2008, p. 28. As seen previously, the meaning of the word “right” will be taken here as covering claims grounded in the interest of the NGO.

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1.1 Content of the Rule Treaty law grants this right to the ICRC,8 to “impartial humanitarian bodies,”9 “relief societies,”10 “National Societies,”11 “substitutes of the Protecting Powers,”12 and in general to all humanitarian organisations mentioned in the Geneva Conventions and Additional Protocols.13 This principle is reinforced in Principle 25 of the 1998 Guiding Principles on Internal Displacement,14 and in Article II of the 1969 Organisation of African Unity Refugee Convention.15 This rule is recognised in both international and non-international armed conflicts.16

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Article 88 of the 1929 Prisoners of War Convention reads as follows: “The foregoing provisions do not constitute any obstacle to the humanitarian work which the International Red Cross Committee may perform for the protection of prisoners of war with the consent of the belligerents concerned.” See also Articles 3 and 9/9/9/10 common of the 1949 Geneva Conventions and Articles 5 and 81 of Protocol I. See Articles 3 and 9/9/9/10 common of the 1949 Geneva Conventions and Articles 5 and 81 of Protocol I. In particular Article 3 common states that “An impartial humanitarian body, such as the ICRC, may offer its services to the Parties to the conflict.” Article 18 of Protocol II states that “relief societies . . . such as Red Cross (Red Crescent, Red Lion and Sun) organisations may offer their services.” According to the commentary on Article 3 common, this initiative right applies also to National Societies: see Commentary Article 3 common, p. 58. See also Article 18 of Protocol II and Article 81 of Protocol I. See Article 5 of Protocol I. Para. 4 of Article 81 of Protocol I states that “The High Contracting Parties and the Parties to the conflict shall, as far as possible, make facilities similar to those mentioned in paragraphs 2 and 3 available to the other humanitarian organizations referred to in the Conventions and this Protocol which are duly authorized by the respective Parties to the conflict and which perform their humanitarian activities in accordance with the provisions of the Conventions and this Protocol.” All the organisations mentioned in the second and third Chapters benefit therefore from a right of initiative. Para. 2 of this principle reads as follows: “International humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced. Such an offer shall not be regarded as an unfriendly act or an interference in a State’s internal affairs and shall be considered in good faith.” This article states that: “The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.” Although there is a distinction in treaty law between the right of initiative under Common Article 3 to the four Geneva Conventions and under Protocol II: see Raphael Van Steenberghe, “Non-State actors from the perspective of the International Committee of the Red Cross,” in d’Aspremont, Jean (ed.), Participants in the International Legal System, op. cit., pp. 205–206.

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Obviously, any NGO can make proposals to States at any time. However, in times of armed conflict, this offer could be considered by some as an inimical act, or an intervention in their internal affairs. IHL provisions prevent this analysis and imply that it is a right to suggest to the State parties to the Geneva Conventions that humanitarian activities be undertaken in favour of the victims of the conflict, in accordance with humanitarian principles, and the State should carefully examine this proposal.17 The Parties to the conflict can decline the offer if they can do without it. But they can no longer look upon it as an unfriendly act, nor resent the fact that the organisation making the offer has tried to come to the aid of the victims of the conflict. Outside assistance must, however, only be supplemental.18 This right of initiative is “more than a tribute paid to Henry Dunant. It is an invitation to all men of good will to perpetuate his gesture.”19 It gives the opportunity to all NGOs to act in times of armed conflicts for the relief of protected persons. This right has been acknowledged by States not only to the ICRC, but also to other humanitarian NGOs. It has been set forth in military manuals. For example, Sweden’s IHL Manual states, “Relief actions of an humanitarian and impartial character . . . shall not be regarded as interference in the armed conflict or as unfriendly acts.”20 Other military manuals phrase the obligation in more general terms.21 In addition, the UK Military Manual states that “If no protection can be arranged, the Detaining Power must request, or shall accept, the offer of the services of a humanitarian organisation, such as the ICRC,

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to assume the humanitarian functions performed by the Protecting Power.”22 It has also been recognised by States in recent codes of conduct.23 In addition, the right of initiative of humanitarian organisations has been reaffirmed by States at conferences.24 For example, at a Conference on Humanitarian Law, the delegate of the United States stated support of the principle that the ICRC and the relevant Red Cross or Red Crescent organisations be granted all necessary facilities and access to enable them to carry out their humanitarian functions, mentioned in Article 81 of the Protocol I.25 The right of initiative has been also recognised by States at the twenty-first International Red Cross Conference.26 In 1991 and 1992, the SFRY made two statements to support the relief operations of the Red Cross and in particular of the ICRC.27 It should be also noted that States at the 1949 Diplomatic Conference did not oppose the mention of the initiative right in Articles 3 and 9/9/9/10 common.28 The right of initiative of the ICRC (and of other organisations) has been implicitly recognised by the Constitutional Court of Colombia, which stated, “The presence of neutral organizations, such as the International Red Cross, as provided for in Article 3 common to the 1949 Geneva Conventions and in

22 UK, Military Manual, 1958, paras. 277–278, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2829. 23 “Humanitarian action in favour of civilian population should not be seen as interference or an unfriendly act:” para. 3.2 of the Code of Conduct for Humanitarian Agencies in Sierra Leone, Revised 21st November 1998, available at: http://www.daco-sl.org/. 24 The International Dialogues Foundation organised an international conference on children rights in armed conflicts that took place in Amsterdam in June 1994. This conference adopted a Declaration, which recognised a initiative right of humanitarian organisations in its paragraph 5: “les organisations humanitaires ont le droit d’offrir et de fournir une aide humanitaire conforme aux principes reconnus par le droit humanitaire international. L’accès aux victimes doit être garanti aux organisations humanitaires; la sécurité du personnel de ces organisations doit aussi être garantie.” 25 Martin D. Dupuis, John Q. Heywood and Michèle Y.F. Sarkof, (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., 1987, p. 428. 26 See Declaration of principles for international humanitarian relief to the civilian population in disaster situations, Adopted at the XXIst International Conference of the Red Cross, Resolution XXVI, September 1969, para. 4, available at: http://www.ifrc.org/. 27 The two statements are reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1189. 28 Commentary Article 3 common, p. 58.

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Article 18 of Protocol II, does not constitute a threat to the sovereignty of the Colombian State, because the latter has freedom of decision whether or not to request their services or accept their offers.”29 It has also been recognised by United Nations bodies. For example, the Human Rights Commission endorsed the Guiding Principles on Internal Displacement in 1998, which provide for such rights.30 The General Assembly also acknowledged the principle.31 The Security Council reaffirmed it implicitly in a 2000 Resolution, where it called upon all parties concerned “to cooperate with the ICRC to enable it to carry out its mandate.”32 Moreover, this right has also been acknowledged by the academic literature. For example, it is cited in Responsibility to Protect33 and has been recognised by experts.34 In a resolution adopted at its Santiago de Compostela Session in 1989, the International Law Institute stated, “States should not arbitrarily reject assistance.”35 The Guiding Principles on the Right to Humanitarian Assistance also states, “National authorities, national and international organisations whose statutory mandates provide for the possibility of rendering humanitarian assistance, such as the ICRC, UNHCR, other organisations of the UN system, and professional humanitarian organisations, have the right to offer such assistance when the conditions laid down in the present Principles are fulfiled. This offer should not be regarded as an unfriendly act or as interference in a State’s internal affairs.”36 29

Republic of Colombia, Constitutional Court, Ruling No. C-225/95, Re: File No. L.A.T.-040, para. 18, cited in Marco Sassòli and Antoine A. Bouvier, How Does Law Protect in War?, Vol. II, op. cit., p. 2271. 30 Commission on Human Rights, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, UN Doc. E/CN.4/1998/53/Add, 11 February 1998, Addendum. See also E/CN.4/1998/53/Add.2, 11 February 1998, p. 13 and E/CN.4/1999/79, 25 January 1999, para. 49. 31 General Assembly, Resolution 46/182, 19 December 1991, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, clauses 3 and 6. 32 UN Security Council, Resolution 1291, 24 February 2000, preamble and paras. 12–13. 33 ICISS, The Responsibility to Protect, Supplementary Vol. to the Report of the International Commission on Intervention and State Sovereignty, December 2001, International Development Research Center, Ottawa, p. 146. 34 See E/CN.4/2004/77/Add.4, 17 February 2004, Summary Report of the Experts’s meeting of the Conference on Internal Displacement in the Inter-Governmental Authority on Development (IGAD) Region, Khartoum, 30 August–1 September 2003, p. 11, para. 32. 35 Institute of International Law, Santiago de Compostela Session, Resolution III, The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States, 13 September 1989, Article 5. 36 “Guiding Principles on the Right to Humanitarian Assistance, Principles 5, 6 and 12,” International Review of the Red Cross, Vol. 197, 1993, pp. 522–523 and 525.

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It has been said by academics that the initiative right of the ICRC is part of customary law.37 Yves Sandoz considered that it was going too far, although he demonstrated in one article that this initiative right have been generally admitted by States since the ninetieth century, and by all the members of the International Conferences of the Red Cross and Red Crescent.38 Limitation to this Rule: The Need for the Consent of the State Party to the Conflict The initiative right is subject to the consent of the State party to the conflict, as mentioned in Article 88 of the 1929 Prisoners of War Convention,39 Article 9/9/9/10 common of the 1949 Geneva Conventions,40 and Article 5 of Protocol I. However, Article 18 of Protocol II only refers implicitly to this condition.41 This condition is logical: if humanitarian organisations offer their services, this offer can be rejected, and therefore the consent of the State parties to the conflict is necessary. However, the denial of access of humanitarian assistance in armed conflicts must be founded on valid grounds.42 For example, the ICRC Commentary on Additional Protocol II states that the fact that consent is required “does not mean that the decision is left to the discretion of the parties.”43 The Commentary continues on to exemplify this by putting forward that denial of access to relief 1.2

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Pierre Mertens, “Les modalités de l’intervention du CICR dans le conflit du Nigéria,” Annuaire français du droit international, 1969, p. 185; Mohamed El Kouhene, Les garanties fondamentales de la personne en droit humanitaire et droits de l’homme, Martinus Nijhoff, Dordrecht, 1986, pp. 189–190. Yves Sandoz, “Le droit d’initiative du Comité international de la Croix-Rouge,” German Yearbook of International Law, Vol. 22, 1979, pp. 352–373. Article 88 reads as follows: “The foregoing provisions do not constitute any obstacle to the humanitarian work which the International Red Cross Committee may perform for the protection of prisoners of war with the consent of the belligerents concerned.” Article 9 states that: “The provisions of the present Convention constitute no obstacle to the humanitarian activities which the ICRC 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.” Article 18 of Protocol II states that “relief societies . . . may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict.” In another paragraph, the article states that “relief actions for the civilian population . . . shall be undertaken subject to the consent of the High Contracting Party concerned.” It was stated during the 1974–1977 negotiations that the consent clause in Article 18 of Protocol II did not imply that the Contracting Parties could refuse to give their agreement for arbitrary reasons: see Official Records, op. cit., OR/II/SR.87, para. 27. Commentary Article 18 of Protocol II, p. 1479, para. 4885.

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societies would amount to a violation of Article 14 of Protocol II prohibiting starvation as a method of warfare.44 The Institut de droit International passed a resolution that “An offer by . . . an impartial humanitarian body such as the ICRC, of food or medical supplies to another State in whose territory the life or health of the population is seriously threatened, cannot be considered an unlawful intervention in the affairs of that State. . . . States in whose territories these emergency situations exist should not arbitrarily reject such offers of humanitarian assistance.”45 The ICJ also confirmed that “the provision of strictly humanitarian aid to persons or forces in another country . . . cannot be regarded as unlawful intervention.”46 Some scholars even conclude that there is now a positive obligation on States to accept humanitarian aid.47 Another important aspect of the consent issue in a non-international context is who shall give the consent to the delivery of humanitarian assistance. Article 3 common of the Four Geneva Convention refers to “Parties to the conflict”, therefore implying that both the insurgents and the High Contracting Party have to provide consent. Article 18(2) in fine of Protocol II requires the consent only of the ‘High Contracting Party concerned’ and not that of its internal adversary. However, an insurgent party falling under the application of Protocol II according to its Article 1 is determined on the basis of whether that belligerent has, to a certain extent, the de facto control over a territory. It would then be rational to consider such an insurgent also a party “concerned” in the sense of Article 18(2) in fine. Consequently, a High Contracting State would only be “concerned” and its consent thus required if the aid would have to pass over the territory that it itself controlled48 and not when taking the tour over land controlled exclusively by an insurgent. Therefore, approval of all parties to an internal armed conflict may indeed prove essential to the actual delivery of the aid in real life. In conclusion, the existence of State practise and opinio juris, as clear from States’ statements, court decisions, United Nations resolutions and the lack of opposition to this principle by States at Diplomatic Conferences, is sufficient 44 45

Ibid. Article 5 of the Resolution “The Protection of Human Rights and the Principle of NonIntervention in Internal Affairs of States,” Annuaire de l’Institut de droit international, 1989, p. 345. 46 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 ICJ Reports, p. 124. 47 Martin Griffits, Iain Levine and Mark Weller, “Sovereignty and Suffering,” in John Harris (ed.), The Politics of Humanitarian Intervention, Pinter, New York, 1995, p. 46. 48 Michael Bothe, “Relief Actions: The position of the Recipient State,” in Frits Kalshoven (ed.), Assisting the Victims of Armed Conflicts and Other Disasters, Martinus Nijhoff, Dordrecht, 1989, p. 94.

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to recognise the initiative right of NGOs as customary in both internal and international armed conflict. 2

A Customary Right to Have Access to Protected Persons

The right to have access to the protected persons in armed conflicts, which entails also a certain freedom of movement, has been granted to NGOs in treaty law and recognised in State practise. This right is, however, subject to military exigencies and administrative regulations. 2.1 Content of the Rule 2.1.1 Right of Access to Prisoners of War and Internees The right of humanitarian organisations to have their access to prisoners of war and internees facilitated by the Detaining or Occupying Powers is recognised in several humanitarian law provisions concerning international armed conflicts. Treaty law grants this right to the ICRC,49 “religious organisations,”50 “relief societies,”51 “organisations assisting the prisoners of war,”52 “religious personnel,”53 and “substitutes of the Protecting Powers.”54 49

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Article 76 of the Fourth Geneva Convention provides that “protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the ICRC.” See also Article 9/9/9/10 common to the Geneva Conventions, Article 126 of the Third Geneva Convention and Article 143 of the Fourth Geneva Convention. Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention similarly grant facilities to “religious organizations, relief societies, or any other organizations assisting the prisoners of war/protected persons” for visiting the prisoners/­protected persons. See also Article 30 of the Fourth Geneva Convention. Articles 15 of the 1899 and 1907 Hague Regulations and Article 78 of the 1929 Prisoners of War Convention mention that “agents of these societies [relief societies for prisoners of war] may be admitted to the places of internment.” See also Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention. Article 30 of the Fourth Geneva Convention states that “the Detaining or Occupying Powers shall facilitate (. . .) visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.” See also Articles 125 of the Third Geneva Convention and 142 of the Fourth Geneva Convention. Articles 35 of Third Geneva Convention and 93 of the Fourth Geneva Convention add that chaplains/ministers of religion shall be free to correspond “with international religious organizations.” Finally, the right to visit protected persons is recognised for ministers of religion in Article 93 of the Fourth Geneva Convention. Similar privileges have been granted to substitutes of the Protecting Power, which have a free right to access to the places of internment of prisoners of war and other protected

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The right of access to prisoners of wars and civilian internees has been recognised by States in several military manuals.55 It has also been recognised by States in the fora of international organisations. Several resolutions of the UN Security Council,56 General Assembly,57 and Human Rights Commission58 requested the parties to the conflict to grant such access to detainees. For example, in two resolutions adopted in 1992, the UN Security Council demanded that the relevant international humanitarian organisations, and in particular the ICRC, be granted immediate, unimpeded and continued access to camps, prisons, and detention centres within the territory of the former Yugoslavia.59 The right of access to detained persons has, on several occasions, been cited by the League of Arab States60 and by the Council of Europe.61 For example, the Parliamentary Assembly of the Council of Europe adopted two texts demanding that humanitarian organisations be

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persons, according to Articles 56 and 126 of the Third Geneva Convention and Articles 76, 96, and 143 of the Fourth Geneva Convention. In addition, according to Article 105 of the Third Geneva Convention, substitutes can attend trials of war criminals. The same holds true for trials of civilians in occupied territories, according to Article 74 of the Fourth Geneva Convention. See the military manuals of Argentina, Belgium, Benin, Canada, Ecuador, El Salvador, Israel, Madagascar, New Zealand, Spain, Sweden, Switzerland, Togo, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2827–2829. UN Security Council, Resolution 770, 13 August 1992, preamble; Resolution 771, 13 August 1992, para. 4; Resolution 968, 16 December 1994, para. 10; Resolution 1009, 10 August 1995, para. 3; Resolution 1010, 10 August 1995, para. 1; Resolution 1019, 9 November 1995, preamble and para. 2; Resolution 1034, 21 December 1995, preamble ands paras. 2–5; Statement by the President, UN Doc. S/PRST/1995/43, 7 September 1995. UN General Assembly, Resolution 2676 (XXV), 9 December 1970, para. 1; Resolution 46/242, 25 August 1992, para. 9; Resolution 48/153, 20 December 1993, paras. 14–16; Resolution 49/10, 3 November 1994, para. 25; Resolution 49/196, 23 December 1994, paras. 23–24. UN Commission on Human Rights, Resolution 1998/70, 21 April 1998, para. 5(f). UN Security Council, Resolution 770, 13 August 1992, preamble; Resolution 771, 13 August 1992, para. 4. In a resolution of 1997, the Council of the League of Arab States urged “the Member States of the League to use their good offices in international organisations so that all necessary representations are made to the government of Israel, the occupying power, to enable the ICRC and other humanitarian organisations to visit the detainees in Khiam and Marj Uyun periodically and on a regular basis:” League of Arab States, Council, Resolution 5635, 31 March 1997, para. 4, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2835–2836. Council of Europe, Parliamentary Assembly, Resolution 854, 20 November 1985, para. 6; Resolution 1050, 10 November 1994, para. 6; Resolution, 1066, 27 September 1995, para. 6; Resolution 1077, 24 January 1996, para. 5; Resolution 1085, 24 April 1996, para. 8;

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given access to Bosnian Serb prisoner camps62 and to detained persons.63 The Eritrea Ethiopia Claims Commission also considered that provisions of the Third Geneva Convention requiring access to prisoners by the ICRC are part of customary international law.64 2.1.2 Right of Access to Other Protected Persons A number of general provisions provide for the facilitation of a humanitarian access by NGOs to civilians in need, in both international and non-international conflicts, by parties to the conflict. This right has been granted to the ICRC,65 “impartial humanitarian bodies,”66 “religious personnel,”67 “relief societies,”68 “National Societies,”69 “medical personnel,”70 “civil defence organisations,”71 “voluntary aid societies,”72 and in general to all NGOs providing humanitarian assistance, as specified in Protocol I,73 the 1998 Guiding Principles on Internal Displacement74 and in several national agreements.75

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65 66 67 68 69 70 71 72 73

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Resolution 1385, 24 September 1998, para. 7, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2835. Council of Europe, Parliamentary Assembly, Resolution 1066, 27 September 1995, para. 6, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2835. Council of Europe, Parliamentary Assembly, Recommendation 1385, 24 September 1998, para. 7, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2835. Eritrea Ethiopia Claims Commission, Partial Award Prisoners of War Ethiopia’s Claim 4, between the Federal Democratic Republic of Ethiopia and the State of Eritrea, The Hague, 1 July 2003, The Permanent Court of Arbitration, The Hague, para. 61, available on www. pca-cpa.org. Articles 59, 61, and 143 of the Fourth Geneva Convention. Articles 59 and 61 of the Fourth Geneva Convention. Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 17 of the Third Geneva Conventions. Article 18 of Protocol II. Article 17 of Protocol I; Article 18 of Protocol II. See for example Articles 8, 10, and 15 of Protocol I. Article 63 of Protocol I. Article 17 of Protocol I; Article 18 of Protocol II. Article 70 of Protocol I provides that “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.” Para. 3 of Principle 25 reads as follows: “All authorities concerned shall grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced.” For example, para. 4 of the 1995 Agreement between the Government of Croatia and UNCRO stipulates that: “Full access by UNCRO and by humanitarian organisations,

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The right for NGOs to access protected persons who are victims of armed conflict has, on a number of occasions, been recognised by States. It is also mentioned in a number of military manuals.76 States have additionally referred to this right in various fora. In a meeting in 1999, the Foreign Ministries of the G8 agreed on the general principle of the “unimpeded access to Kosovo by humanitarian aid organisations.”77 African States, at a conference, agreed to “undertake to act in order to offer humanitarian organisations unimpeded access in time of armed conflicts to civilian populations in need.”78 The 26th International Conference of the Red Cross and Red Crescent adopted two resolutions in which it emphasised “the importance for humanitarian organisations to have unimpeded access in times of armed conflict to civilian populations in need.”79 Similar statements have been adopted by the APC-EU Joint particularly UNHCR and the ICRC, to the civilian population, will be assured by the authorities of Croatia, to the extent allowed by objective security considerations.” See also Para. 9 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the SFRY; Para. 2.6 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina; Para. 2 of the 1992 Bahir Dar Agreement; Para. 3 of the 1994 Agreement on a Cease Fire in the Republic of Yemen; Para. 1 of the 1999 Agreement on the Protection and Provision of Humanitarian Assistance in the Sudan; 2000 Cairo Plan of Action, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1176–1178. 76 See the military manuals of Argentina, Canada, Colombia, Germany, Kenya, the Netherlands, New Zealand, United Kingdom and the US Field Manual, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1179–1183. 77 G-8, Statement by the Chairman on the conclusion of the meeting of the Foreign Ministers, Petersberg Centre, 6 May 1999, annexed to UN Security Council, Resolution 1244, 10 June 1999, Annex I. 78 African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Niamey, 18–20 February 2002, Final Declaration, para. 14, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1205. 79 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution II, paras. A and E, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1204. See also the final Declaration adopted by the International Conference for the Protection of War Victims in 1993: International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, paragraph II(8), International Law Materials, Vol. 33, 1994, p. 301. Finally, see the 2000–2003 Plan of Action: 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Resolution I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, para. 1(g).

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Assembly,80 the Council of the European Union,81 the European Parliament,82 and the OSCE Permanent Council.83 In addition, access to the victims of armed conflicts by humanitarian organisations has been the subject of many UN resolutions. The Security Council requested at several occasions access to the civilian populations by “international humanitarian organizations,”84 “humanitarian organizations,”85 and “humanitarian agencies,”86 or humanitarian personnel.87 The Security Council

80 81

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APC-EU, Joint Assembly, Resolution on Sudan, 20 March 1997, para. 3, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1202. EU, Council of the EU, Common Position, 19 March 1998, preamble, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1202. See also EU, Council of the EU, Declaration on Kosovo, 15 June 1998, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1203. European Parliament, Resolution on Kosovo, 16 July 1998, preamble; Resolution on the situation in Kosovo, 8 October 1998, preamble, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1203. OSCE, Permanent Council, Resolution on Chechnya, 3 February 1995, paras. 6 and 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1203. UN Security Council, Resolution 1009, 10 August 1995, para. 2; Resolution 1213, 3 December 1998, para. 7; Resolution 1216, 21 December 1998, para. 5; Resolution 688, 5 April 1991, para. 1; Resolution 706, 15 August 1991, preamble; Resolution 1333, 19 December 2000, preamble and para. 13. UN Security Council, Resolution 1160, 31 March 1998, para. 16(c); Resolution 1199, 23 September 1998, paras. 4(c) and 5(d); Resolution 1264, 15 September 1999, para. 2; Statement by the President, UN Doc. S/PRTS/1997/19, 4 April 1997; Statement by the President, UN Doc. S/PRTS/1997/55, 16 December 1997, p. 2. UN Security Council, Resolution 824, 6 May 1993, para. 4(b); Resolution 1004, 12 July 1995, para. 5; Statement by the President, UN Doc. S/PRTS/1996/44, 1 November 1996, p. 1; Statement by the President, UN Doc. S/PRTS/1997/5, 7 February 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1997/22, 24 April 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1997/24, 30 April 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1998/9, 6 April 1998, p. 2; Statement by the President, UN Doc. S/PRTS/1998/26, 31 August 1998, p. 2. UN Security Council, Resolution 1296, 19 April 2000, para. 8; Resolution 1314, 11 August 2000, para. 7; Statement by the President, UN Doc. S/PRTS/1997/34, 19 June 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1999/6, 12 February 1999, p. 1; Statement by the President, UN Doc. S/PRTS/2000/4, 11 February 2000, p. 2; Statement by the President, UN Doc. S/PRTS/2000/7, 13 March 2000, p. 2; Statement by the President, UN Doc. S/PRTS/2001/6, 2 March 2001, p. 1.

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further defined that access should be granted to the “local population,”88 “victims of the conflict,” “those in need,”89 “displaced persons,”90 and “all children affected by armed conflict.”91 The UN General Assembly also requested access for humanitarian organisations92 or humanitarian personnel93 to all civilians in need of assistance. Moreover, in two reports, the UN SecretaryGeneral requested safe access to “humanitarian organizations” to vulnerable populations in conflict situations.94 The UN Commission for Human Rights similarly urged the government of the Russian Federation “to allow international humanitarian organizations, notably the UNHCR and the ICRC, free and secure access to areas of internally displaced and war affected populations.”95 2.1.3 A Certain Freedom of Movement As a consequence of the principle that humanitarian organisations shall have access to the protected persons, the parties to the conflict must ensure their freedom of movement allowing them to exercise their functions in both international and non-international armed conflict. This obligation is set forth in Protocol I.96 Protocol II implies this right as well, in requiring that relief actions for the civilian population in need be organised, requiring a certain freedom of movement of humanitarian organisations.97 In addition, several provisions lay down that free passage must be granted to religious personnel travelling 88 89

90 91 92

93 94

95 96 97

UN Security Council, Resolution 1009, 10 August 1995, para. 5; Statement by the President, UN Doc. S/PRST/1995/38, 4 August 1995, p. 1. UN Security Council, Resolution 931, 19 June 1994, para. 22; Resolution 1078, 9 November 1996, para. A-5; Resolution 1265, 17 September 1999, preamble and para. 7; Resolution 1291, 24 February 2000, preamble and paras. 12–13. UN Security Council, Resolution 1019, 9 November 1995, preamble and para. 2; Resolution 1291, 24 February 2000, preamble and paras. 12–13. UN Security Council, Resolution 1261, 25 August 1999, para. 11; Resolution 1314, 11 August 2000, para. 7. UN General Assembly, Resolution 45/170, 18 December 1990, para. 5; Resolution 53/164, 9 December 1998, paras. 3, 10, 17 and 24; Resolution 54/192, 17 December 1999, para. 3; Resolution 55/116, 4 December 2000, para. 3(f). UN General Assembly Resolution 55/73, 4 December 2000, para. 4. UN Secretary-General, Report on protection for humanitarian assistance to refugees and others in conflict situations, UN Doc. S/1998/883, 22 September 1998, para. 16; Report on the protection of civilians in conflict situations, UN Doc. S/1999/957, 8 September 1999, para. 51. UN Commission on Human Rights, Resolution 2000/58, 25 April 2000, para. 9. Article 71(3) of Additional Protocol I. Article 18(2) of Additional Protocol II.

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to a besieged or encircled area.98 Amended Protocol II to the Convention on Certain Conventional Weapons further implements this freedom of movement 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, boobytraps and other devices in any area under its control.”99 This principle has been recognised by States in the 1991 Hague Statement on Respect for Humanitarian Principles,100 the CSCE Code of Conduct,101 in a military manual,102 national legislation,103 and in States’ statements.104 This right has also been recognised by the United Nations. 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 organisations,105 and also mentioned this right in a more general way.106 98 99 100

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103 104 105

106

Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 17 of the Third Geneva Convention. Article 12 of the Amended Protocol II to the CCW. In this Statement, the Presidents of the six republics of the former Yugoslavia stated that “all Red Cross personnel and medical personnel assisting civilian populations and persons hors combat must be granted the necessary freedom of movement to achieve their tasks.” Para. 19 of the 1994 CSCE Code of Conduct provides that the participating States “will cooperate in support of humanitarian assistance to alleviate suffering among the civilian population, including facilitating the movement of personnel and resources dedicated to such tasks.” Spain’s LOAC Manual states that limitations on the activities and movement of relief personnel are only possible in case of imperative military necessity: see LOAC Manual, 1996, Vol. I, para. 2.4.(c).5, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1236. See the legislation of Ireland and Norway, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1237. See the statements of the FRY and Republika Srpska of Bosnia and Herzegovina, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1237. UN Security Council; Resolution 746, 17 March 1992, para. 8; Resolution 751, 24 April 1992, para. 14; Resolution 819, 16 April 1993, para. 10; Resolution 998, 16 June 1995, para. 1; Resolution 1075, 11 October 1996, para. 18; Resolution 1078, 9 November 1996, para. A-5; Resolution 1080, 15 November 1996, para. 6; Resolution 1083, 27 November 1996, para. 8; Resolution 1088, 12 December 1996, para. 23; Resolution 1173, 12 June 1998, para. 9; Resolution 1193, 28 August 1998, para. 7; Resolution 1202, 15 October 1998, para. 10; Resolution 1213, 3 December 1998, para. 7; Resolution 1333, 19 December 2000, para. 13. In a resolution adopted in 1999 on protection of civilians in armed conflicts, the Security Council emphasised “the need for combatants to ensure the . . . freedom of movement of . . . personnel of international human­itarian organizations:” UN Security Council,

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This right has also been affirmed by the President of the Security Council,107 the General Assembly,108 and the Human Rights Commission.109 Finally, in the 1991 Hague Statement on Respect for Humanitarian Principles, the Presidents of the six republics of the former Yugoslavia stated that “all Red Cross personnel and medical personnel assisting civilian populations and persons hors de combat must be granted the necessary freedom of movement to achieve their tasks.” Exceptions: Military or Security Necessity and Administrative Regulations This right of access to prisoners of war and internees for humanitarian organisations is limited by military necessity, security considerations, or administrative regulations,110 and should be an exceptional and temporary measure. The decision is, however, taken by the Detaining Power alone. It can be concluded therefore that the consent of the Detaining Power is necessary.111 The restrictions of military necessity, security considerations, administrative regulations and necessary consent are also valid regarding access to civilians in need. Protocol I provides that “only in case of imperative military necessity may the activities of the relief personnel be limited or their movements 2.2

107

108

109 110

111

Resolution 1265, 17 September 1999, para. 8. In a similar resolution 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:” UN Security Council, Resolution 1296, 19 April 2000, para. 12. UN Security Council, Statement by the President, UN Doc. S/PRTS/1996/25, 21 May 1996, p. 2; Statement by the President, UN Doc. S/PRTS/1996/43, 22 October 1996, p. 2; Statement by the President, UN Doc. S/PRTS/1996/44, 1 November 1996, p. 1; Statement by the President, UN Doc. S/PRTS/1997/5, 7 February 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1997/6, 7 February 1997, p. 2; Statement by the President, UN Doc. S/PRTS/1997/8, 27 February 1997, p. 2; Statement by the President, UN Doc. S/ PRTS/1997/39, 23 July 1997, p. 1; Statement by the President, UN Doc. S/PRTS/1998/14, 22 May 1998, p. 1; Statement by the President, UN Doc. S/PRTS/1998/22, 14 July 1998, p. 2; Statement by the President, UN Doc. S/PRTS/1998/24, 6 August 1998, p. 2. UN General Assembly, Resolution 46/242, 25 August 1992, para. 9; Resolution 51/30 G, 13 December 1996, para. 8; Resolution 53/164, 9 December 1998, paras. 3 and 17; Resolution 54/192, 17 December 1999, para. 5(e). UN Commission on Human Rights, Resolution 1999/S-4/1, 27 September 1999, para. 5(e). Article 15 of the 1907 Hague Regulations; Article 78 of the 1929 Prisoners of War Convention; Article 30 of the Fourth Geneva Convention; Article 125 of the Third Geneva Convention; Article 143 of the Fourth Geneva Convention; Article 126 of the Third Geneva Convention. See also Article 9/9/9/10 commun to the Geneva Conventions.

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temporarily restricted.”112 This limitation has been cited in several national agreements.113 The party should, for example, decide to limit the activities of NGOs who distribute humanitarian aid to the population when it is known that they are passing foodstuffs onto the armed forces of the adverse Party.114 The restriction of military necessity has been reproduced in a number of military manuals. For example, the US Field Manual provides that the ICRC, the National Society, or any other organisation that may assist protected persons “shall be granted all facilities for [assisting protected persons] by the authorities, within the bounds set by military or security considerations.”115 The Commentaries on the Geneva Conventions highlight that the limitations of military or security considerations should be used in a moderate way by the belligerents and only applied in cases of real necessity. Moreover, limitations should continue only as long as the reasons for them continue to exist. States should resort to them as an exceptional and temporary measure. Such restrictions should never be applied generally and they should be lifted as soon as circumstances allow.116 It seems normal that guarantees are given to the power concerned by humanitarian organisations, including the need for their delegates to obtain a permit from the military authorities and to observe the routine and prescribed police regulations.117 The right of access to protected persons, including prisoners of war and internees, and to a certain freedom of movement, should be recognised as customary, due to wide State practise and opinio juris, as demonstrated by State statements, military manuals and the broad endorsement of this principle by United Nations bodies. According to treaty law provisions and the fact that opinio juris do usually not distinguish between both, this right is customary in both internal and international armed conflicts. It should be noted that the customary right to have access to protected persons is recognised in State practise to all humanitarian organisations (but the consent of the parties is still 112 Article 71(3) of Protocol I. 113 See for example, Para. 4 of the 1995 Agreement between the Government of Croatia and UNCRO, which stipulates that: “Full access by UNCRO and by humanitarian organisations, particularly UNHCR and the ICRC, to the civilian population, will be assured by the authorities of Croatia, to the extent allowed by objective security considerations.” 114 Commentary Article 71 of Protocol I, p. 835, para. 2894. 115 United States, Field Manual, 1956, para. 269, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1183. 116 Commentary Article 126 of the Third Geneva Convention, p. 611; Commentary Article 30 of the Fourth Geneva Convention, p. 218; Commentary Article 143 of the Fourth Geneva Convention, p. 577; Commentary Article 71 of Protocol I, p. 835, para. 2896. 117 Commentary Article 125 of the Third Geneva Convention, p. 596.

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necessary). This right is therefore granted to all organisations acting on behalf of the protected persons, and not only those humanitarian organisations cited in the Geneva Conventions and its Additional Protocols. 3

A Customary Right to Provide Relief to Protected Persons

In international humanitarian law, NGOs have also been granted the right to exert their humanitarian activities in favour of protected persons. This general right can be divided according to the categories of protected persons needing relief: civilian population, prisoners of wars and internees, wounded, sick and shipwrecked, and the dead and missing persons. Right to Exert Humanitarian Activities in Favour of All Protected Persons 3.1.1 Content of the Rule Treaty law recognises this right to the ICRC,118 National Societies,119 “relief societies,”120 “impartial humanitarian bodies,”121 “substitutes of the Protecting Powers,”122 “medical personnel,”123 “civil defence organisations,”124 “voluntary aid societies,”125 “religious personnel,”126 “organisations assisting the protected 3.1

118 According to Articles 3 and 9/9/9/10 common of the 1949 Geneva Conventions, “an impartial humanitarian body” may undertake “humanitarian activities . . . for the protection of wounded and sick, medical personnel and chaplains, and for their relief.” This right is reinforced in Articles 5 and 81 of the Protocol I and in Article 30 of the Fourth Geneva Convention. 119 Article 63 of the Fourth Geneva Convention provides that “recognized National (. . .) Societies (. . .) [and] other relief societies shall be permitted to continue their humanitarian activities.” Article 81 of Protocol I provides that “The Parties to the conflict shall grant to their respective Red Cross (Red Crescent, Red Lion and Sun) organizations the facilities necessary for carrying out their humanitarian activities in favour of the victims of the conflict.” See also Article 30 of the Fourth Geneva Convention. 120 See Article 18 of Protocol II. 121 See Articles 3 and 9/9/9/10 common of the 1949 Geneva Conventions, and Article 81 of the Protocol I. 122 See Article 30 of the Fourth Geneva Convention. 123 See for example Articles 8, 10, and 15 of Protocol I. 124 Article 63 of Protocol I. 125 Article 17 of Protocol I; Article 18 of Protocol II. 126 Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 17 of the Third Geneva Conventions.

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persons,”127 “substitutes of the Protecting Powers,”128 and to all organisations mentioned in the Geneva Conventions and Additional Protocols.129 This right exists in both international and non-international conflicts. This right has been recognised by States. At a Conference on Humanitarian Law, the United States delegate voiced support to the principle that the ICRC and the relevant Red Cross or Red Crescent organisations be granted all necessary facilities and access to enable them to carry out their humanitarian functions.130 He added support to the principle that in occupied territories, civilians receive from the appropriate authorities, as practicable, the facilities necessary for the performance of their tasks.131 The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, reaffirmed the “right of the victims to be assisted by humanitarian organizations, as set forth in the Geneva Conventions of 1949 and other relevant instruments of international humanitarian law.”132 In addition, the final Declaration adopted by the International Conference for the Protection of War Victims in 1993 demanded “that measures be taken at the national, regional and international levels to allow assistance and relief personnel to carry out in all safety their mandate in favour of the victims of an armed conflict.”133 Several military manuals recognise also a general right to humanitarian organisations to act in favour of protected persons. Article 30 of the Fourth Geneva Convention, recognising the right of protected persons to make application to humanitarian organisations has been reproduced in a number 127 Article 30 of the Fourth Geneva Convention recognises the right of protected persons to make application to the protecting powers, the ICRC or a National Society, as well as to “any organ­ization that might assist them.” Article 142 of the Fourth Geneva Convention also states that “the representatives of . . . any other organizations assisting the protected persons” shall receive from the Detaining Power “all facilities for . . . distributing relief supplies and material from any source.” 128 Article 10/10/10/11 common to the Geneva Conventions; Article 23 of the First Geneva Convention. 129 See para. 4 of Article 81 of Protocol I. 130 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 428. 131 Ibid., p. 427. 132 World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, para. I(29), cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1233. 133 International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, Part I, para. 7, in International Legal Materials, Vol. 33, 1994, p. 301.

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of military manuals.134 Moreover, some military manuals state that “Within the limits of military or security considerations, the belligerents must provide (the ICRC, the local National Red Cross or equivalent Society or any other organisation that may assist protected persons) all necessary facilities for giving assistance.”135 National practise granting a general right of assistance to victims of armed conflict can also be found in Colombia, Ethiopia, and Germany.136 A general right to provide relief to protected persons has also been recognised by the United Nations, including the Security Council,137 and the General Assembly.138 In the United Nations Millennium Declaration adopted by the UN General Assembly in 2000, the heads of State and government declared that they would “Spare no effort to ensure that children and all civilian populations that suffer disproportionately the consequences of natural disasters, genocide, armed conflicts and other humanitarian emergencies are given every assistance and protection so that they can resume normal life as soon as possible.”139 In addition, the UN Secretary-General stated that: “Under international law, refugees, displaced persons and other victims of conflict have a right to international protection and assistance where this is not available from their national authorities.”140

134 UK, Military Manual, 1958, para. 40; Canada, Law of Armed Conflict Manual, 1999, pp. 11–14, para. 31; New Zealand, Military Manual, 1992, para. 1115; Switzerland, Basic Military Manual, 1987, Article 155; US, Field Manual, 1956, para. 269 and US, Air Force Pamphlet, 1976, paras. 14–4, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1229–1230. 135 UK, Military Manual, 1958, para. 40, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1183; Canada, Law of Armed Conflict Manual, 1999, pp. 11–14, para. 31, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1181; New Zealand, Military Manual, 1992, para. 1111, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1182. See also US, Field Manual, 1956, para. 269, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1183. 136 See the statements of the Colombian government, Ethiopia, and Germany, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1230–1231. 137 UN Security Council, Resolution 824, 6 May 1993, preamble; Statement by the President, UN Doc. S/PRST/1998, 18, 29 June 1998, pp. 1 and 2. 138 UN General Assembly, Resolution 2675 (XXV), 9 December 1970, para. 8; Resolution 55/2, 8 September 2000, para. 26. 139 UN General Assembly, Resolution 55/2, 8 September 2000, para. 26. 140 UN Secretary-General, Report on protection for humanitarian assistance to refugees and others in conflict situations, UN Doc. S/1998/883, 22 September 1998, para. 15.

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3.1.2

Exceptions: State Consent, Military Necessity and Other Security Considerations As seen previously, this right is however limited by the necessary consent of the State concerned,141 as well as military necessity and other security considerations.142 Similarly, Article 62 of Protocol I mentions “civilian civil defence organizations . . . shall be entitled to perform their civil defence tasks except in case of imperative military necessity.” It means that such tasks may only be forbidden when the authorities are placed before the alternative of either changing major operational plans or doing without civil defence personnel. The Commentary on the Protocol gives the example of works that must be carried out in an area where security cannot be guaranteed because of availability of resources and in the light of imperative operational choices. In such cases, the choice must be based on the principles of protection of the civilian population and precautions in attack.143 To conclude, due to sufficient State practise and opinio juris, as demonstrated by State statements, military manuals provisions, and resolutions of United Nations bodies, the right to provide relief to protected persons is recognised as customary. According to treaty law provisions and the fact that State practises do usually not distinguish between both, this right is customary in both internal and international armed conflicts. 3.2 Right to Provide Relief to the Civilian Population This right to provide relief and humanitarian assistance to the civilian population has been granted to NGOs in treaty law and recognised in State practise. It is valid in both international and non-international armed conflicts. It is, however, subject to two restrictions: the consent of the parties to the conflict, and other restrictions regarding supervision of the delivery of humanitarian aid.

141 Article 9/9/9/10 common of the 1949 Geneva Conventions and Article 81 of the Protocol I. 142 Articles 30 and 142 of the Fourth Geneva Convention. 143 Commentary Article 62 of Protocol I, p. 740, para. 2445.

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3.2.1 Content of the Rule Treaty law grants this right to the ICRC,144 “impartial humanitarian bodies,”145 “civil defence organisations,”146 “relief societies,”147 National Societies,148 “medical personnel”149 “voluntary aid societies,”150 “religious personnel,”151 “substitutes of the Protecting Powers,”152 and to all organisations cited in the Geneva Conventions and Additional Protocols,153 in both international and non-international conflicts. The right to provide relief to civilians is linked to the prohibition against deliberately impeding the delivery of humanitarian assistance. There exists a right of passage for humanitarian relief to the civilian population, as

144 Article 9/9/9/10 common to the Geneva Conventions; Articles 30, 59, 61, 76, and 142 of the Fourth Geneva Convention; Article 81 of Protocol I; Article 18 of Protocol II; Article 25 of the 1934 Tokyo Draft International Convention. 145 Article 9/9/9/10 common to the Geneva Conventions; Articles 15, 59, and 61 of the Fourth Geneva Convention; Articles 60 and 81 of Protocol I. 146 Article 63 of the Fourth Geneva Convention allows National Societies and organisations of a non-military character which are distributing relief to the civilian population, to continue their humanitarian activities in times of occupation. And under Articles 61 to 64 of Protocol I, civilian civil defence organisations shall receive from the authorities the facilities necessary for the performance of their tasks in assisting civilians. 147 See Article 142 of the Fourth Geneva Convention and Article 18 of Protocol II. 148 See Article 63 of the Fourth Geneva Convention and Article 81 of Protocol I. 149 See Article 15 of Protocol I and Article 9 of Protocol II. 150 Article 17 of Protocol I; Article 18 of Protocol II. 151 Article 15 of Protocol I. 152 In accordance with Article 55 of the Fourth Geneva Convention, it can be determined by Protecting Powers whether sufficient food-stuffs and medical supplies are available in the occupied territories. See also Article 10/10/10/11 common to the Geneva Conventions, providing that the substitute can undertake the functions performed under Conventions by a Protecting Power designated by the Parties to a conflict. 153 The object of the obligations contained in Article 70 of Protocol I and Article 18 of Protocol II is a “relief action,” without any specification as to the entity that is supposed to undertake such an action. Article 70 of Protocol I should be read together with Article 18 of Protocol II and Article 59 of the Fourth Geneva Convention. This leads to the conclusion that, apart from the ICRC and any other impartial humanitarian organisation, other organisations can carry out a relief action within these provisions: Denise Plattner, The Legal Framework of International Relief in Situations of Armed Conflict, presented at the meeting on “Conflict and International Relief in Contemporary African Famines,” London, 26 March 1992, available at www.icrc.org, p. 3.

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mentioned in Articles 23 of the Fourth Geneva Convention154 and 70 of Protocol I.155 Under Article 8(2)(b)(xxv) of the ICC Statute, “wilfully impeding relief supplies” is a war crime in international armed conflicts. Regarding non-international armed conflicts, this requirement was included in the draft Protocol II adopted at the Diplomatic Conference, but it was deleted.156 As a result, Article 18(2) of Protocol II requires only that relief actions be organised, which implies that access for relief materials be granted. In addition, this rule is contained in other instruments applicable to non-­international armed conflict.157 Article 7 of the ICC Statute adds, 154 This article 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.” 155 Article 70 of Protocol I states that “If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.” 156 Article 33 of the Draft Additional Protocol II, in CCDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 43. 157 Paragraph 4 of the 1995 Agreement between the Government of Croatia and UNCRO stipulates that “full access by UNCRO and by humanitarian organisations (. . .) to the civilian population, for the purpose of providing for the humanitarian needs of the civilian population, will be assured by the authorities of Croatia.” Paragraph 9 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, as well as Paragraph 2.6 of the 1992 Agreement on the Application of IHL between the Parties to the conflict in Bosnia and Herzegovina, provide that the parties “shall consent and cooperate with operations to provide the civilian population with exclusively humanitarian, impartial and non-discriminatory assistance.” Paragraph 3 of the 1994 Agreement on a Cease-fire in the Republic of Yemen states that the ICRC “and other humanitarian organisations will be granted a possibility to unimpededly deliver humanitarian relief, primarily medicine, water and food supplies to the areas affected as a result of the conflict.” According to Principle 25 of the 1998 Guiding Principles on Internal Displacement, “international humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced.” Section 9.9 of the 1999 UN Secretary-General’s Bulletin states that “the United Nations force shall facilitate the work of relief operations which are humanitarian and impartial in character.” See also para. 1 of the 1999 Agreement on the Protection and Provision of Humanitarian Assistance in Sudan, where the parties agreed that “all humanitarian agencies accredited by the United Nations for humanitarian work in the Sudan shall have free and unimpeded access to all war-affected populations in need of assistance and to all war-affected populations for the

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“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 the civilian population. Third States also have an obligation to allow access for humanitarian relief. Protocol I requires unimpeded passage of humanitarian relief by each State party to it.158 Such a provision was also included in the draft Protocol II by Committee II at the Diplomatic Conference, but it was deleted.159 This right is linked to the prohibition of starvation of civilians as a method of warfare.160 Impeding relief supplies is prohibited by the legislation of numerous States.161 In addition, on several occasions, impeding relief actions has been widely condemned by States.162 One of these occasions was the war in Bosnia and Herzegovina.163

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purposes of assessing whether or not they are in need of humanitarian assistance.” In the 2000 Cairo Plan of Action, the heads of government of African States and the EU urged States, during armed conflicts, “to secure rapid and unimpeded access to the civilian population.” All these texts are reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1177–1178. Article 70(2) of Additional Protocol I. Draft Additional Protocol II, Article 33(2), CCDH, Official Records, Vol. XIII, CCDH/406/ Rev.1, 17 March–10 June 1977, p. 385, para. 96 and p. 424. Article 54 of Protocol I, Article 14 of Protocol II and Article 8(2)(b) of the ICC Statute. See the legislation of Australia, Canada, Colombia, Congo, Georgia, Germany, Ireland, Mali, Netherlands, New Zealand, Norway, Philippines and United Kingdom, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1211–1213. See the statements of Germany (Germany, Federal Foreign Office, Press Release, Statement by the Minister of Foreign Affairs on humanitarian assistance to Kosovo, 6 April 1999, YIHL, Vol. 2, 1999, p. 366), United States (US, Message from the US President Transmitting Additional Protocol II to the Senate for Advice and Consent to Ratification, Treaty Doc. 100–2, 29 January 1987, Comment on Article 18) and Yugoslavia (FRY, Federal Executive Council, Statement regarding the need for the respect of the norms of international humanitarian law in the armed conflicts in Yugoslavia, Belgrade, 31 October 1991), reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1187–1189. See also the statements of Norway (Norway, Statement before the UN Security Council, UN Doc. S/PV/4110, 9 February 2000, p. 10) and United States (US, Remarks of Michael J. Matheson, Deputy Legal Advisor, US Department of State, in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., pp. 426 and 428). See the statements of China (China, Statement before the UN Security Council, UN Doc. S/PV.3082, 30 May 1992, p. 8), Egypt, Iran, Pakistan, Saudi Arabia, Senegal and Turkey (Egypt, Iran, Pakistan, Saudi Arabia, Senegal and Turkey, Letter dated 5 October 1992 to the President of the UN Security Council, UN Doc. S/24620, 6 October 1992, para. a) and

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The requirement that relief actions shall be undertaken whenever a population is in need has also been recognised in State practise. Nicaragua’s Military Manual, for example, states that “the civilian population has the right to receive the relief they need.”164 Germany’s Military Manual provides, “If the civilian population . . . is inadequately supplied with indispensable goods, relief actions by neutral States or humanitarian organisations shall be permitted.”165 National legislation has incorporated such principle.166 In addition, at a Conference on Humanitarian Law, the delegate of the United States stated that the United States supports the principles of Articles 54 and 70 of Protocol I that starvation of civilians not be used as a method of warfare and, subject to the requirements of imperative military necessity, that impartial relief actions necessary for the survival of the civilian population be permitted and encouraged.167 The 26th International Conference of the Red Cross and Red Crescent in 1995 also reasserted “the right of a civilian population in need to benefit from impartial humanitarian relief actions in accordance with international humanitarian law.”168 Many military manuals similarly contain the obligation to allow and facilitate access of humanitarian relief to civilians in need.169 For e­ xample, Italy’s IHL Manual states that an occupying power has the obligation to United Kingdom (UK, Statement before the UN Security Council, UN Doc. S/PV.3217, 25 May 1993, p. 17). 164 Nicaragua, Military Manual, 1996, Article 14(33). 165 Germany, Military Manual, 1992, para. 503, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1181. 166 See the legislation of Australia, Azerbaijan, Bangladesh, Belgium, Burundi, Cambodia, Canada, Congo, Czech Republic, Ethiopia, Germany, Ireland, Israel, Mali, New Zealand, Slovakia, Trinidad and Tobago, United Kingdom, United States and Vietnam, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1184–1186. 167 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 426. 168 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution II, para. A(h). 169 See the military manuals of Argentina (“allow”), Australia (“allow”), Canada (“allow” and “facilitate” in case of siege warfare), Colombia (“allow”), Germany (“permit”), Italy (“accept”), Kenya (“allow and facilitate”), Netherlands (“have to give” and “facilitate”), New Zealand (“allow”), Russia (“give all facilities”), Switzerland (“all necessary facilities”), United Kingdom (“allow,” “all necessary facilities” and “guarantee”) and United States (“agree” and “facilitate”), reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1179–1183.

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accept the despatch of relief materials by other States or impartial humanitarian organisations.170 Switzerland’s Basic Military Manual states, “The personnel of accepted humanitarian organisations, relief consignments and equipment must benefit from all necessary facilities, notably free passage,” in order to assist civilians in a territory temporarily occupied by foreign troops.171 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. In a resolution, 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.”172 Several other Security Council resolutions reiterate the right to humanitarian assistance of the civilian population.173 The General Assembly has recognised this right in a number of resolutions,174 and in the Guiding Principles on Humanitarian 170 Italy, IHL Manual, 1991, Vol. I, para. 48, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1181. 171 Switzerland, Basic Military Manual, 1987, Article 155, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 1182. 172 UN Security Council, Resolution 1265, 17 September 1999, para. 7. 173 UN Security Council, Resolution 758, 8 June 1992, para. 8; Resolution 761, 29 June 1992, para. 4; Resolution 770, 13 August 1992, preamble; Resolution 771, 13 August 1992, preamble; Resolution 787, 16 November 1992, para. 7; Resolution 794, 3 December 1992, para. 5; UN Security Council, Resolution 824, 6 May 1993, preamble; Resolution 836, 4 June 1993, preamble; Resolution 945, 29 September 1994, para. 10; Resolution 998, 16 June 1995, preamble; Resolution 1132, 8 October 1997, para. 2 and Resolution 1193, 28 August 1998, para. 9. See also UN Security Council, Resolution 688, 5 April 1991, para. 1; Resolution 706, 15 August 1991, preamble; Resolution 822, 30 April 1993, para. 3; Resolution 853, 29 July 1993, para. 11; Resolution 874, 14 October 1993, para. 9; Resolution 752, 15 May 1992, para. 8; Resolution 757, 30 May 1992, preamble; Resolution 794, 3 December 1992, para. 2; Resolution 822, 30 April 1993, para. 3; Resolution 824, 6 May 1993, para. 4; Resolution 851, 15 July 1993, para. 15; Resolution 853, 29 July 1993, para. 11; Resolution 874, 14 October 1993, para. 9; Resolution 876, 19 October 1993, para. 7; Resolution 908, 31 March 1994, para. 22; Resolution 931, 29 June 1994, para. 7; Resolution 998, 16 June 1995, para. 4; Resolution 1004, 12 July 1995, para. 5; Resolution 1019, 9 November 1995, para. 2; Resolution 1059, 31 May 1996, para. 7; Resolution 1083, 27 November 1996, para. 8; Resolution 1160, 31 March 1998, para. 16; Resolution 1199, 23 September 1998, para. 4; Resolution 1213, 3 December 1998, para. 7; Resolution 1239, 14 May 1994, para. 3; Resolution 1291, 24 February 2000, paras. 12–13; Resolution 1333, 19 December 2000, para. 13. 174 UN General Assembly, Resolution 46/242, 25 August 1992, para. 9; Resolution 49/196, 23 December 1994, para. 14; Resolution 50/193, 22 December 1995, para. 13; Resolution

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Assistance.175 In a report on emergency assistance to Sudan in 1996, the UN Secretary-General also recognised “the right of civilian populations to receive humanitarian assistance in times of war.”176 The United Nations Commission of Human Rights similarly recognised this right of humanitarian assistance granted to the civilian population.177 It called on the government of Sudan and all parties to the conflict “to permit international agencies, humanitarian organizations and donor governments to deliver humanitarian assistance to the civilian population.”178 In addition, the prohibition of starvation of civilians is cited in military manuals179 and the legislation of numerous States.180 The prohibition

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52/140, 12 December 1997, para. 2; Resolution 52/145, 12 December 1997, para. 16; Resolution 45/170, 18 December 1990, para. 5; Resolution 46/182, 19 December 1991, Annex, para. 6; Resolution 48/88, 20 December 1993, para. 12; Resolution 49/196, 23 December 1994, para. 30(a); Resolution 49/198, 23 December 1994, preamble; Resolution 53/164, 9 December 1998, paras. 3, 10, 17 and 24; Resolution 54/192, 17 December 1999, para. 3; UN General Assembly, Resolution 55/2, 8 September 2000, para. 26. The principles provide that “States in proximity to emergencies are urged to participate closely with the affected countries in inter­national efforts, with a view to facilitating . . . the transit of humanitarian assistance:” UN General Assembly, Resolution 46/182, 19 December 1997, Annex, para. 7. UN Secretary-General, Report on emergency assistance to Sudan, UN Doc. A/51/326, 4 September 1996, paras. 71 and 93; see also Report on protection for humanitarian assistance to refugees and others in conflict situations, UN Doc. S/1998/883, 22 September 1998, para. 15 and Reports on the protection of civilians in armed conflict, UN Doc. S/1999/957, 8 September 1999, para. 51. UN Commission on Human Rights, Resolution 1983/29, 8 March 1983, para. 10; Resolution 1994/72, 9 March 1994, para. 11; Resolution 1994/75, 9 March 1994, para. 1; Resolution 1995/ 77, 8 March 1995, para. 18; Resolution 1995/89, 8 March 1995, para. 17; Resolution 1996/73, 23 April 1996, preamble; Resolution 1998/67, 21 April 1998, para. 3; Resolution 2000/58, 25 April 2000, para. 9. UN Commission on Human Rights, Resolution 1995/77, 8 March 1995, para. 3. The Commission adopted two following similar resolutions: Resolution 1997/59, 15 April 1997, para. 18; Resolution 1998/67, 21 April 1998, para. 3. See the military manuals of Argentina, Australia, Belgium, Benin, Canada, Colombia, Croatia, France, Germany, Hungary, Indonesia, Israel, Kenya, South Korea, Madagascar, the Netherlands, New Zealand, Nigeria, Russia, Spain, Sweden, Switzerland, Togo, United Kingdom and the United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1124–1127. See the legislation of Australia, Azerbaijan, Belarus, Bosnia and Herzegovina, Burundi, Canada, China, Congo, Ivory Coast, Croatia, Ethiopia, Georgia, Germany, Ireland, Lithuania, Mali, the Netherlands, New Zealand, Norway, Slovenia, Trinidad and Tobago,

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was also stated by the UN Secretary-General181 and the Human Rights Commission.182 The academic literature generally supports the customary nature of the principle of providing relief to the civilian population. According to Penna, Articles 68 to 71 of Protocol are of customary nature, since Resolution 2675 (XXV)183 declares: “The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights, and other international instruments in the field of human rights.”184 Lauri Hannikainen similarly holds that the occupying power is under a peremptory obligation not to deliberately prevent the civilian population from enjoying adequate living conditions, nourishment, and medical care.185 For Gasser, the experience of the ICRC with its own relief actions shows that in practise governments and insurgents do accept such relief actions. There is, therefore, considerable State practise relating to the acceptance by governments, and also by insurgents, of relief operations on behalf of the needy populations.186 However, the doctrine is not unanimous. Cassese stated that Articles 68–71 of Protocol I are not general in character and, therefore, cannot be considered part of customary law.187 Also, Bruno Zimmermann noted that Article 70 of

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and United Kingdom, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 1127–1129. UN Secretary-General, Report on the protection of civilians in armed conflict, UN Doc. S/2001/331, 30 March 2001, para. 14. UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report, UN Doc. S/1995/933-A/50/727, 7 November 1995, para. 54. Adopted by the General Assembly by a vote of 108 to none, with 18 abstentions. Basic Principles for the Protection of Civilian Populations in Armed Conflicts, Resolution 2675 (XXV) of the General Assembly, 9 December 1970, as cited in L. R. Penna, “Customary International Law and Protocol I: An Analysis of some Provisions,” in Christophe Swinarski (ed.), Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, op. cit., pp. 222–223. Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., p. 671. Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 481. Antonio Cassese, “The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law,” Pacific Basin Law Journal, Vol. 3, 1984, pp. 97–98.

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Protocol I provides that the parties mentioned in paragraphs 2 and 3 of this article enjoy certain rights in relation to the passage of consignments. He added that this is in sharp contrast with the pre-existing law and custom as reflected in the Geneva Conventions, which restricted the free passage of relief consignments.188 These statements were made more than 20 years ago, but IHL evolved significantly over this period and these statements could be nuanced today. At a Conference, Hans-Peter Gasser stated that it is not clear if Article 18 of Protocol II concerning relief operations has a customary law status, due to the tough negotiations at the Diplomatic Conference on this subject,189 and because the relief operation is subject to the consent of the party concerned. 3.2.2

The Obligation to Obtain the Consent of the State Where the NGO Operates Humanitarian organisations have the right to furnish humanitarian assistance provided that they obtain the consent of the government concerned.190 Consent must be given when the necessary requirements are fulfiled, i.e. that the international relief operation is of humanitarian and impartial nature.191 A humanitarian organisation cannot operate without the consent of the party concerned, but such consent must not be refused on arbitrary grounds. If it is established that a civilian population is threatened with starvation and a humanitarian organisation, which provides relief on an impartial and nondiscriminatory basis, is able to remedy the situation, a party is obliged to give consent.192 The rule that consent must not be refused on arbitrary grounds is found in State practise and supported by scholars. Several resolutions by the United Nations Security Council called on States193 to provide unimpeded access to

188 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 530. 189 Commentary Article 18 of Protocol II, pp. 805–809. 190 Article 27 of the First Geneva Convention; Articles 9/9/9/10 commun to the Geneva Conventions; Articles 64, 70, and 81 of Protocol I; Article 18 of Protocol II. 191 Articles 70 of Protocol I and 18 of Protocol II. 192 Commentary Article 1 of Protocol II, p. 1479, para. 4885. 193 See the resolutions cited above and in particular UN Security Council, Resolution 1265, 17 September 1999, preamble and para. 7; Resolution 1296, 19 April 2000, paras. 8 and 12; Resolution 1314, 11 August 2000, para. 7. These resolutions made statements to this effect in respect of armed conflicts in general.

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such relief without any mention of the need for the said State’s consent.194 The 26th International Conference of the Red Cross and Red Crescent also stressed the obligation of all parties “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.”195 This rule has been confirmed by the Institut de droit International196 and to some extent by the ICJ in the Nicaragua case.197 Other scholars and practitioners have followed this trend, even arguing that a “right of humanitarian assistance” would imply that the consent of the State to undertake humanitarian activities on its territory is no longer necessary. Yves Sandoz has argued that in practical terms, Article 3 terms authorises the ICRC or any other impartial humanitarian body to enter a territory without the agreement of the government that still represents the entire State internationally.198 Others argue that in noninternational armed conflicts, for the NGO to act in the territory controlled by the rebels, it is sufficient that the rebels only give their consent (and not the State).199 This view has also been defended by most French NGOs and scholars. For example, several French NGOs agreed for an extension of the applicability of IHL to medical missions that do not receive the approval of the recipient State.200 In fact, numerous NGOs have intervened in conflict areas without the 194 Louise Doswald Beck, “Developments in Customary International Humanitarian Law,” Revue suisse de droit international et européen, No. 3, 2005, p. 488. 195 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution II, paras. A(i) and E(b). 196 Article 5 of the Resolution “The Protection of Human Rights and the Principle of NonIntervention in Internal Affairs of States,” Annuaire de l’Institut de droit international, 1989, p. 345. 197 “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 in any other way contrary to international law:” see ICJ Reports 1986, p. 124. 198 Le système de l’article 3 “autorise pratiquement le CICR (ou tout autre organisme humanitaire impartial) à pénétrer sur un territoire sans l’accord d’un Gouvernement qui représente encore l’ensemble de l’Etat sur le plan international:” Yves Sandoz, “Le droit d’initiative du Comité international de la Croix-Rouge,” German Yearbook of International Law, Vol. 22, 1979, p. 365. 199 Maurice Torelli, “La protection du médecin volontaire,” Annales de droit international médical, No. 33, avril 1986, pp. 63–64. 200 “The Protocols extend protection only to those medical missions that prior to departure have received the approval of the recipient State. It seems therefore necessary that

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consent of the State where they were active. MSF has frequently argued that this was the best approach,201 as has Bernard Kouchner.202 The interpretation

the area of applicability of humanitarian rights be extended. With this idea in mind, an International Humanitarian Centre was created in France in 1984, under the auspices of the International Federation for Human Rights. The founders were MSF, Médecins du Monde, Aide médicale internationale and Hôpital sans frontières. A project for a charter protecting non-governmental medical missions was introduced and reviewed:” Reginald Moreels, “Humanitarian Diplomacy, The Essence of Humanitarian Assistance,” in Fritz Kalshoven (ed.), Assisting the Victims of Armed Conflicts and Other Disasters, Papers delivered at the International Conference on Humanitarian Assistance in Armed Conflict, The Hague, 22–24 June 1988, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1989, p. 44. 201 “The actions of MSF rely on ethical rather than legal norms; it is an attitude recorded in its charter and based on moral behaviour. (. . .) The ethics guide our actions and therefore justify them in the eyes of society. The struggle for moral and political rights, as well as for social and economic rights finds its roots in the Universal Declaration of Human Rights. Thereby, the values involved assume the character of legal norms. The actions that MSF undertakes could thus become lawful in their turn. The fact that we enter conflict regions without prior consent of the central government may be justified by the moral duty of MSF to provide medical help to those who no longer have normal access to medical aid. Globally seen, this mode of conduct may become a practise accepted as law:” Reginald Moreels, “Humanitarian Diplomacy, The Essence of Humanitarian Assistance,” in Fritz Kalshoven, (ed.), Assisting the Victims of Armed Conflicts and Other Disasters, Papers delivered at the International Conference on Humanitarian Assistance in Armed Conflict, The Hague, 22–24 June 1988, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1989, pp. 46–47. 202 “Humanitarian assistance is considered in many foreign countries as an obligation, but also as a form of exploitation. Governments assume that they alone possess the right to call for help, when it is for their own good and when it serves their purposes. Yet, it is the wounded that call out, the famished who have the right to be heard. Is human suffering and the pain of the governed the exclusive property of government? We (Médecins du monde) believe that it is not. We feel that, on the contrary, a new right is forming in the name of indignation and solidarity, a morality based on a situation of urgent need that allows individuals to reach out to others in danger. We have shaped this right of humanitarian intervention through our work (. . .) Today we continue to work on the Afghan soil, ‘officially’ clandestine, working without passports and visas to help alleviate the on-going suffering of this people. (. . .) In El Salvador for several years, our teams were forced to work in similar clandestine conditions:” Bernard Kouchner, “Morals of Urgent Need,” in Fritz Kalshoven (ed.), Assisting the Victims of Armed Conflicts and Other Disasters, Papers delivered at the International Conference on Humanitarian Assistance in Armed Conflict, The Hague, 22–24 June 1988, op. cit., p. 56.

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of MSF is that the consent of the State is required in the case of non-vital emergency actions, but not in the case of vital operations.203 The consent of the State to allow passage of humanitarian relief for civilians in need is not necessary, according to the authors of the ICRC Study on Customary International Humanitarian Law,204 since “most of the practise collected does not mention this requirement.”205 The Study has, however, been criticised by the United States for summarily dismissing the role of State consent in humanitarian assistance.206 The academic literature shared this latter view. One academic found this analysis unsatisfactory, because it was not accompanied with referenced practise.207 Another author stated: “A simplified rule that deletes most of the rights of the States involved in relief actions is simply deceptive.”208 The authors of the ICRC Study later explained that there was no intention to go beyond the content of the Additional Protocols. The problem lies in the formulation of a rule that would cover both international and non-international armed conflicts. It was problematic to use the term “consent

203 Francoise Bouchet-Saulnier, “Coutume: espace de création et d’activisme pour le juge et pour les organisations non gouvernementales,” dans Paul Tavernier et Jean-Marie Henckaerts, Droit international humanitaire coutumier: Enjeux et défis contemporains, Bruxelles, Bruylant, 2008, p. 168. 204 “Si les deux Protocoles additionnels exigent, pour qu’une action de secours puisse se dérouler, le consentement des parties concernées, la majeure partie des pratiques collectées aux fins de cette étude ne mentionne pas cette exigence. Ceci dit, il est évident qu’une organisation humanitaire ne saurait opérer sans le consentement de la partie concernée. Toutefois, ce consentement ne doit pas être refusé pour des raisons arbitraires. S’il est établi qu’une population civile est menacée de famine et qu’un organisme humanitaire répondant aux exigences requises d’impartialité et de non-discrimination peut apporter des secours, la partie concernée ne peut refuser de donner son accord:” Jean-Marie Henckaerts, “Etude du CICR sur le droit international humanitaire coutumier: objet, caractéristiques, conclusions et pertinence,” dans Paul Tavernier et Jean-Marie Henckaerts (eds.), Droit international humanitaire coutumier: Enjeux et défis contemporains, op. cit., pp. 47–48. 205 ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, p. 196. 206 John B. Bellinger III and William J. Haynes II, “A US Government Response to the ICRC Study on Customary International Humanitarian Law,” International Review of the Red Cross, Vol. 89, No. 866, June 2007, p. 448. 207 Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study,” Israeli Yearbook on Human Rights, Vol. 36, 2006, p. 12. 208 George H. Aldrich, “Customary International Humanitarian Law—An Interpretation on Behalf of the ICRC,” The British Yearbook of International Law, 2005, p. 517.

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from the parties,” including consent from armed opposition groups, in a rule that would cover both international and non-international armed conflict.209 In fact, the system of international law is based on the agreement of States, and the right of access for humanitarian reasons requires the agreement of the State concerned.210 This view is in accordance with the provisions of the Geneva Conventions and Additional Protocols.211 Even if most of the practise does not mention this requirement, a humanitarian organisation cannot operate without the consent of the party concerned. However, such consent must not be refused on arbitrary grounds. As previously noted, if it is established that a civilian population is threatened with starvation and a humanitarian organisation, which provides relief on an impartial and non-discriminatory basis, is able to remedy the situation, a party is obliged to give consent.212 In addition, the Commentary on the Geneva Conventions and Additional Protocols and the practise do not shed light on the form of the consent needed: it can therefore be interpreted that this consent can be given only orally, or without much formality (especially in times of humanitarian emergencies). This gives flexibility to the NGOs in obtaining the necessary consent of the State.

209 Jean-Marie Henckaerts, “Customary International Humanitarian Law: a Response to US Comments,” International Review of the Red Cross, Vol. 89, No. 866, June 2007, p. 484. 210 See for exemples the statements of Yves Sandoz and Carlos Villa Duran at a workshop on humanitarian assistance: “XVIIe Table Ronde de l’Institut international de droit humanitaire, San Remo, 2–4 septembre 1992,” Revue internationale de la croix-rouge, No. 798, novembre-décembre 1992, pp. 621–622. See also the opinion of Karl Josef Partsch, dans UNESCO (ed.), Le droit à l’assistance humanitaire, Actes du colloque international organisé par l’UNESCO, Paris, 23–27 janvier 1995, UNESCO, Paris, 1996, p. 143. 211 For further discussion on the topic, see particularly Michael Bothe, “Relief Actions: The Position of the Recipient State,” in Frits Kalshoven (ed.), Assisting the Victims of Armed Conflict and Other Disasters, op. cit., pp. 91–98; Katja Luopajarvi, “Is There an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons Under International Law?,” International Journal of Refugee Law, Vol. 15/4, 2004, pp. 678–714; Christa Rottensteiner, “The Denial of Humanitarian Assistance as a Crime Under International Law,” International Review of the Red Cross, No. 835, September 1999, pp. 555–582. 212 Statement of Jean-Marie Henckaerts at the Chatham House Conference presenting the ICRC Study: Chatham House, The Law of Armed Conflict: Problems and Prospects, Chatham House, 18–19 April 2005, Transcripts and summaries of presentations and discussions, available at: http://www.chathamhouse.org.uk/, p. 6.

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3.2.3

Other Limitations: Supervision and Other Arrangements and Military Necessity The Fourth Geneva Convention and Protocol I provide for three additional limitations of the right to free passage of relief consignments to the civilian population.213 First, the Powers shall not divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned. The situations are very limited. In concrete terms, the delay can really be justified only if it is impossible for reasons of security to enter the territory where the receiving population is situated, or to cross some part of the territory of the Party allowing the transit. The diversion would be allowed particularly when there is a delay in the transport of perishable foodstuffs. It might also be justifiable in a case in which a disaster affected the Party through whose territory the relief consignment was passing, so that the provisions were even more necessary for the victims of this disaster than for those for whom they had initially been intended.214 Second, the Power that allows the passage of the consignments may make permission conditional on the supervision by a Protecting Power or its substitute.215 The draft of Article 70 of Protocol I even referred to supervision of a Protecting Power “or an impartial humanitarian organization.” It is indeed essential that consignments should be subject to strict and constant supervision from the moment they arrive until they have been distributed.216 The way in which such supervision should be carried out is not specified and it is up to the Protecting Power to establish measures. Examples of supervision include receipts for individual consignments, frequent spot checks in depots and warehouses, periodical verification of distribution plans and reports, and 213 See Article 23 of the Fourth Geneva Convention and Article 23 of the Protocol I. Article 23 of the Fourth Geneva Convention also specifies that the obligation of a High Contracting Party to allow the free passage of the consignments is subject to the condition that this Party is satisfied that there are no serious reasons for fearing that a definite advantage may accrue to the military efforts or economy of the enemy through the consignments. The provisions of paragraph 3 of Article 70 are less restrictive than those in Article 23 of the fourth Convention. Article 70 of the Protocol in this respect modifies Article 23 of the fourth Convention, and the second paragraph of that article should be considered as obsolete in any armed conflict to which Protocol I applies: see Commentary Article 70 of Protocol I, p. 826, paras. 2848–2851. This condition will therefore not be examined further. 214 Commentary Article 70 of Protocol I, p. 826, paras. 2844–2847. 215 Commentary Article 23 of the Fourth Geneva Convention, p. 182. 216 Commentary Article 23 of the Fourth Geneva Convention, p. 182.

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other measures of supervision.217 However, a slight loss of supplies should be tolerated in view of the difficulty of the task and this should not be used as a pretext to suspend any relief actions.218 Third, the Power has the right to prescribe the technical arrangements, including search, under which such passage is allowed. The Power authorising free passage is entitled to check the consignments and arrange for their forwarding at prescribed times and on prescribed routes. The right to prescribe such arrangements should be used without infringing the obligation to facilitate the rapid and unimpeded passage of relief consignments.219 Another limitation is the restrictions imposed due to military necessity or security. The Protecting Power can verify the state of the food and medical supplies in occupied territories, except “where temporary restrictions are made necessary by imperative military requirements.”220 Furthermore, National Societies, relief societies, and organisations of a non-military character shall be permitted to continue their humanitarian activities in occupied territories only “subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power.”221 The security measures refer in particular to the possibility of relief societies promoting action hostile to the Occupying Power under cover of humanitarian activity. But the security of the Occupying Power must be threatened by real danger. Under no circumstances may the occupation authorities invoke reasons of security to justify the general suspension of all humanitarian activities in an occupied territory.222 Protocol I also provides that “Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted.”223 Although the treaty provisions refer to a number of restrictions to this right, due to wide recent State practise and opinio juris, the right of assistance to the civilian population can be considered as customary. States have widely endorsed this principle, as demonstrated in their statements, military manuals, court decisions, and United Nations resolutions. This right is customary in both internal and international armed conflicts, according to treaty law provisions and relevant opinio juris. In fact, due to the absolute character of the rule 217 218 219 220 221 222 223

Commentary Article 23 of the Fourth Geneva Convention, p. 182. Commentary Article 70 of Protocol I, pp. 824–826, paras. 2833–2840. Commentary Article 70 of Protocol I, p. 824, para. 2831. Article 55 of the Fourth Geneva Convention. Article 63 of the Fourth Geneva Convention. Commentary Article 63 of the Fourth Geneva Convention, p. 333. Article 71(3) of Protocol I.

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and its tendency toward universal application,224 this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect this principle. 3.3 Right to Provide Relief to Prisoners of War and Civilian Internees 3.3.1 Content of the Rule This right is granted to the ICRC,225 “religious personnel,”226 “organisations assisting the prisoners of war/internees,”227 “relief societies,”228 “impartial humanitarian bodies,”229 “any other organisation duly approved by the Parties to the conflict,”230 “National Societies,”231 “substitutes of the

224 Georges Abi-Saab, “The Specificities of Humanitarian Law,” in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet, op. cit., p. 280. 225 Articles 72–73 of the Third Geneva Convention; Articles 76, 108–109, and 125 of the Fourth Geneva Convention; Article 5 of Additional Protocol II. 226 Religious personnel have the right to provide spiritual assistance to prisoners of war: see Articles 33 and 35 of the Third Geneva Convention. See also Article 93 of the Fourth Geneva Convention 227 Article 30 of the Fourth Geneva Convention states that “the Detaining or Occupying Powers shall facilitate (. . .) visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.” See also Articles 15 of the 1899 and 1907 Hague Regulations, Article 78 of the 1929 Prisoners of War Convention, Article 125 of the Third Geneva Convention and Article 142 of the Fourth Geneva Convention. Article 98 of the Fourth Geneva Convention provides that “internees may receive allowances from . . . the organizations which may assist them.” See also Articles 72–73 of the Third Geneva Convention and Articles 108–109 of the Fourth Geneva Convention. 228 Several Articles of The Hague Regulations and the 1929 Geneva Convention mention that “relief societies for prisoners of war . . . shall receive from the belligerents . . . every facility for the efficient performance of their humane task:” see Articles 15 of the 1899 and 1907 Hague Regulations and Article 78 of the 1929 Prisoners of War Convention. Articles 142 of the Fourth Geneva Convention and 125 of the Third Geneva Convention provide that relief societies “shall receive . . . all facilities for visiting the prisoners/protected persons, for distributing relief supplies and material from any source, intended for educational, recreational or religious purposes.” 229 Article 81 of Protocol I. 230 Article 111 of the Fourth Geneva Convention provides that “any other organization duly approved by the Parties to the conflict” may undertake the conveyance of the mail and relief shipments for internees. 231 Article 81 of Protocol I.

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Protecting Powers”232 and “religious organisations,”233 in both international and non-international armed conflicts for civilian internees and in international conflicts for prisoners of war. The rule concerns the right to provide relief to prisoners of war/internees and the right to provide spiritual assistance. Right to Provide Relief to Prisoners of War and Internees The rule that prisoners of war should be provided with adequate conditions of living and medical attention was already recognised in the Lieber Code, the Brussels Declaration, and the Oxford Manual.234 It was further codified in the Hague Regulations and in the Third Geneva Convention.235 Under the Fourth Geneva Convention, this rule is also applicable to civilians deprived of their liberty.236 This rule, applicable to civilian internees, is also contained in Protocol II,237 and in other instruments pertaining to non-international armed conflicts.238 The Standard Minimum 232 Substitutes of the Protecting Power have a free right to access to the places of internment of prisoners of war and internees, according to Articles 56 and 126 of the Third Geneva Convention and Articles 96 and 143 of the Fourth Geneva Convention. The right to provide relief is specified in Articles 72–73 of the Third Geneva Convention; Articles 76 and 108–109 of the Fourth Geneva Convention; Article 5 of Additional Protocol II. 233 Articles 142 of the Fourth Geneva Convention and 125 of the Third Geneva Convention provide that “subject to the measures which the Detaining Powers may consider essential to ensure their security or to meet any other reasonable need, the representatives of religious organizations (. . .) shall receive from these Powers, for themselves or their duly accredited agents, all facilities for visiting the prisoners/protected persons, for distributing relief supplies and material from any source, intended for educational, recreational or religious purposes.” See also Article 30 of the Fourth Geneva Convention. 234 Article 76 of the Lieber Code; Article 27 of the Brussels Declaration and Article 69 of the Oxford Manual. 235 Article 7 of the Hague Regulations; Articles 25–32 and 125 of the Third Geneva Convention. 236 Articles 76, 85, 87, 89–92, and 142 of the Fourth Geneva Convention. 237 Article 5(1) of Additional Protocol II. 238 Article 4(6) of Part IV of the Comprehensive Agreement on Respect for Human Rights and International Humani­tarian Law in the Philippines, (“all persons deprived of their liberty for reasons related to the armed conflict shall . . . be provided with adequate food and drinking water, and be afforded safeguards as regards to health and hygiene”); Section 8(c) of the UN Secretary-General’s Bulletin (providing that detained persons “shall be entitled to receive food and clothing, hygiene and medical attention”).

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Rules for the Treatment of Prisoners provides detailed provisions in this regard.239 The rule requiring provision for the basic needs of persons deprived of their liberty by the detaining power, or if it is unable to provide for the basic needs of detainees, by humanitarian agencies, is set forth in numerous military manuals.240 Violation of this rule is an offence under the legislation of many States.241 This rule is also supported by official statements and other practise.242 Several military manuals in particular acknowledge the right for the substitutes of the Protecting Powers to provide relief to internees and prisoners of war. For example, Belgium’s Law of War Manual provides that “Prisoners of war have the right to apply to the representative of the Protecting Power” and that “the Protecting Power and the ICRC shall have access to all premises occupied by prisoners of war.”243 Similar provisions are contained in the military manuals of Argentina, Canada, New Zealand, Sweden, Switzerland, and the United Kingdom.244 This rule is also supported by practise of the United Nations. For example, in 1992, the UN Security Council demanded that all detainees in camps, prisons and detention centres in Bosnia and Herzegovina “receive humane 239 Rules 9–20 of the Standard Minimum Rules for the Treatment of Prisoners. 240 See the military manuals of Argentina, Australia, Benin, Cameroon, Canada, Colombia, Domini­can Republic, Ecuador, France, Germany, Hungary, Israel, Italy, Kenya, Madagascar, Mali, Netherlands, New Zealand, Nicaragua, Nigeria, Philippines, Romania, Senegal, Spain, Switzerland, Togo, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2778–2783. 241 See the legislation of Australia, Azerbaijan, Bangladesh, Chile, Dominican Republic, Ireland, Mexico, Nicaragua, Norway, Peru, Rwanda, Spain and Uruguay, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2784–2785. 242 In 1991, the US reminded the government of Iraq that “prisoners of war . . . must be afforded food, water, clothing and every guarantee of hygiene and healthfulness:” US, Department of State, Diplomatic Note to Iraq, Washington, 20 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 19991, Annex III, p. 4. 243 Belgium, Law of War Manual, 1983, p. 47, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2827. 244 Argentina, Law of War Manual, 1969, para. 2.105; Canada, Law of Armed Conflict Manual, 1999, pp. 10–6, para. 51; New Zealand, Military Manual, 1992, para. 937; Sweden, IHL Manual, 1991, Section 4.1, p. 92; Switzerland, Basic Military Manual, 1987, Article 108; UK, Military Manual, 1958, paras. 277–278, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2827–2829.

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treatment, including adequate food, shelter and medical care.”245 In addition, the Code of Conduct for Law Enforcement Officials and the Basic Principles for the Treatment of Prisoners, adopted by the UN General Assembly, require that prisoners’ health be protected.246 In a resolution on the protection of prisoners of war adopted in 1969, the 21st International Conference of the Red Cross recognised that, irrespective of the Third Geneva Convention, “the international community has consistently demanded humane treatment for prisoners of war, including . . . provision of an adequate diet and medical care.”247 Indeed, the lack of adequate food, water or medical treatment for detained persons amounts to inhumane treatment: in the Aleksovski case, the ICTY took into consideration the quality of the shelter, food and medical care allotted to each detainee in determining whether the accused had treated detainees inhumanely.248 The Eritrea Ethiopia Claims Commission considered that provisions of the Third Geneva Convention requiring external scrutiny of the treatment of prisoners of war and access to prisoners by the ICRC are part of customary international law.249 Right to Spiritual Assistance for Detainees The rule to allow NGOs to provide relief to prisoners of war and internees also includes spiritual relief. The recognition of the right for religious organisations to act for the relief and well-being of protected persons is derived from the obligation of States to respect the religious convictions of protected persons, already recognised in the Lieber Code, the Brussels Declaration,

245 UN Security Council, Resolution 770, 13 August 1992, para. 3. 246 Article 6 of the Code of Conduct for Law Enforcement Officials (“law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required); Para. 9 of the Basic Principles for the Treatment of Prisoners (“prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”). 247 21st International Conference of the Red Cross, Istanbul, 6–13 September 1969, Resolution XI. 248 ICTY, Aleksovski case, Judgement, 25 June 1999, paras. 158, 164, 173 and 182. 249 Eritrea Ethiopia Claims Commission, Partial Award Prisoners of War Ethiopia’s Claim 4, between the Federal Democratic Republic of Ethiopia and the State of Eritrea, The Hague, 1 July 2003, The Permanent Court of Arbitration, The Hague, para. 61, available on www .pca-cpa.org/.

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and the Oxford Manual,250 and further codified in the Hague Regulations.251 The Geneva Conventions252 and Additional Protocols253 require respect for religion and religious practises in a series of detailed rules. The recognition of the freedom of prisoners of war and detained civilians to exercise their religion is further codified in the Hague Regulations,254 the Third and Fourth 1949 Geneva Conventions,255 Protocol I256 and Protocol II (for civilian internees).257 This right is supported in international human rights law. The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and regional human rights treaties provide that everyone has the right to freedom of “thought, conscience and religion,” or alternatively, “conscience and religion.”258 These treaties also provide for the right to manifest

250 Articles 37 of the Lieber Code; Article 38 of the Brussels Declaration; Article 49 of the Oxford Manual. 251 Article 46 of the Hague Regulations. 252 Article 17(3) of the First Geneva Convention (burial of the dead according to the rites of the religion to which they belong if possible); Articles 34–36 of the Third Geneva Convention (religious activities of prisoners of war); Article 120(4) of the Third Geneva Convention (burial of prisoners of war deceased in captivity according to the rites of the religion to which they belonged if possible); Article 120(5) of the Third Geneva Convention (cremation of deceased prisoners of war on account of the religion of the deceased); Article 50(3) of the Fourth Geneva Convention (education of children who are orphaned or separated from their parents as a result of the war by persons of their own religion if possible); Article 76(3) of the Fourth Geneva Convention (spiritual assistance for persons detained in occupied territory), Article 86 (religious services for interned persons); Article 93 of the Fourth Geneva Convention (religious activities of interned persons); Article 130 of the Fourth Geneva Convention (burial of deceased internees according to the rites of the religion to which they belonged if possible and cremation of deceased internees on account of the religion of the deceased). 253 Article 75(1) of Additional Protocol I; Article 4(1) of Additional Protocol II. 254 Article 18 of the Hague Regulations. 255 Articles 34 and 35 of the Third Geneva Convention; Articles 76, 86, and 93 of the Fourth Geneva Convention. 256 Article 75(1) of Additional Protocol I. 257 Article 5(I)(d) of Additional Protocol II; Article 4(1) of Additional Protocol II. 258 Article 18(1) of the International Covenant on Civil and Political Rights; Article 14(1) of the Convention on the Rights of the Child; Article 9(1) of the European Conven­tion on Human Rights; Article 12(1) of the American Convention on Human Rights; Article 8 of the African Charter on Human and Peoples’ Rights.

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one’s religion and beliefs.259 The right to freedom of religion and to manifest it is also set forth in other international instruments as well.260 The requirement to respect a person’s convictions and religious practises is set forth in numerous military manuals261 and in the legislation of several States.262 This rule was upheld in several war crimes trials, as in the Ziihlke263 and in the Tanaka Chuiehi cases.264 In the Aleksovski case, the ICTY also examined whether the accused was guilty of prohibiting detainees from practising their faith.265 It should also be noted that the Elements of Crimes for the ICC, in the context of the war crime of “outrages upon personal dignity,” specify that this crime takes into account relevant aspects of the cultural background

259 Article 18(3) of the International Covenant on Civil and Political Rights; Article 14(3) of the Convention on the Rights of the Child; Article 9(2) of the European Convention on Human Rights; Article 12(3) of the American Convention on Human Rights; Article 8 of the African Charter on Human and Peoples’ Rights. 260 See Article 18 of the Universal Declaration on Human Rights; Article III of the American Declaration on the Rights and Duties of Man; Article 1 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief; Article 10 of the EU Charter of Fundamental Rights. 261 See the military manuals of Argentina, Australia, Canada, Colombia, Dominican Republic, Ecuador, France, Germany, Hungary, Indonesia, Italy, Kenya, Madagascar, New Zealand, Nicaragua, Romania, Spain, Sweden, Switzerland, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2515–2519. See also the military manuals of Argentina, Australia, Benin, Canada, Colombia, Ecuador, Germany, Israel, Italy, Madagascar, Netherlands, New Zealand, Nicaragua, Nigeria, Romania, Senegal, Spain, Switzerland, Togo, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2854–2857. 262 See the legislation of Azerbaijan, Bangladesh, Ireland, Italy and Norway, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2857–2858. See also the legislation of Bangladesh, Bosnia and Herzegovina, Croatia, Ethiopia, Ireland, Lithuania, Myanmar, Norway, Slovenia and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2519–2521. 263 Netherlands, Special Court of Cassation (Second Chamber), Zuhlke case, Judgement, 6 December 1948, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2521. 264 Australia, Military Court at Rabaul, Tanaka Chuichi case, Judgement, 12 July 1946, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2521. 265 ICTY, Aleksovski case, Judgement, 25 June 1999, para. 168.

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of the victim. This was inserted in order to include, as a war crime, forcing persons to act against their religious beliefs.266 Finally, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General qualified violations of Article 4 of Protocol II, requiring respect for detainees’ convictions and religious practises, as crimes under customary international law.267 3.3.2

Limitations to This Right: Military Necessity and Special Agreements As seen previously, the right of access and assistance to prisoners of war and internees is limited by military or security necessities268 and this limitation has been also recognised in State practise. The appointed minister or layman should comply with all regulations in the interests of discipline and military security. This condition was included in the Third Geneva Convention; because, in general, the persons concerned will not be members of the camp community. Once they enter the camp, they must nevertheless comply with the regulations.269 In addition, the Third and Fourth Geneva Conventions mention that the conditions for sending, reception, and distribution of relief shipments to prisoners of war and internees can be organised by special agreements between the powers concerned.270 These agreements cannot, however, restrict the right of the Protecting Power, the ICRC or any other organisation giving assistance to prisoners of war to supervise their distribution to the recipients.271 Consequently, the Detaining Power and the Power sending relief supplies may

266 See Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, Cambridge, 2003, Commentary on Article 8(2l(b)(xxii) of the ICC Statute, p. 315. 267 UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, para. 14. 268 Article 15 of the 1907 Hague Regulations; Article 78 of the 1929 Prisoners of War Convention; Article 30 of the Fourth Geneva Convention; Article 125 of the Third Geneva Convention; Article 108 of the Fourth Geneva Convention; Article 143 of the Fourth Geneva Convention; Article 126 of the Third Geneva Convention; Article 71(3) of Protocol I. 269 Commentary Article 37 of the Third Geneva Convention, pp. 235–236. 270 Article 72 of the Third Geneva Convention; Article 73 of the Third Geneva Convention; Article 109 of the Fourth Geneva Convention. 271 Article 73 of the Third Geneva Convention; Article 109 of the Fourth Geneva Convention.

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agree on special agreements. In the absence of any agreement, the provisions of the annexed Regulations to the Geneva Conventions272 must be applied.273 The Convention does not specify the form or scope of the supervision of humanitarian organisations. In most instances, they will be able to fulfil their duty by obtaining the necessary information from the prisoners’ representatives and the detaining authorities. They may also be present when collective relief supplies are distributed, and may consult the prisoners in order to verify that the distribution is fair.274 These restrictions regarding the special agreements do not, however, appear in Protocol I or in Article 5 of Protocol II. To conclude, due to wide State practise and opinio juris as demonstrated by State statements, military manuals, national legislation, court decisions and numerous resolutions from the United Nations, the right of assistance to prisoners of war and internees should be recognised as customary. This right is customary in both internal and international armed conflict (for civilian internees only). Collect and Provide Medical Care to the Wounded, Sick, and Shipwrecked This right has been granted to the ICRC,275 the Federation,276 National Societies,277 “impartial humanitarian bodies,”278 “relief societies,”279 medical 3.4

272 Annex III of the Third Geneva Convention; Annex II of the Fourth Geneva Convention. 273 Commentary Article 73 of the Third Geneva Convention, p. 360; Commentary Article 109 of the Fourth Geneva Convention, p. 456. 274 Commentary Article 73 of the Third Geneva Convention, pp. 361–362. 275 Article 23 of the First Geneva Convention and Article 14 of the Fourth Geneva Convention (according to these articles, the ICRC can offer its good offices to facilitate the creation of hospital and safety zones). 276 The Federation directs and coordinates international assistance in health emergencies (see Chapter 2). 277 Article 10 of the 1929 Geneva Convention; Article 26 of the first Geneva Convention; Article 8 of Protocol I. 278 According to Articles 3 and 9/9/9/10 common of the Geneva Conventions, “an impartial humanitarian body” may undertake “humanitarian activities . . . for the protection of wounded and sick, medical personnel and chaplains, and for their relief.” 279 Article 13 of the 1880 Laws of War on Land; Article 18 of the First Geneva Convention; Article 18 of Protocol II.

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and religious personnel,280 “voluntary aid societies,” and civilians,281 in both international and non-international conflicts.282 The duty to collect and care for wounded and sick combatants is a longstanding rule of customary international law already recognised in the Lieber Code and in the 1864 Geneva Convention.283 This subject is dealt with in more detail by the 1949 Geneva Conventions,284 including in common Article 3 of the Geneva Conventions that provides: “The wounded and sick shall be collected and cared for.” This duty is codified in Article 10 of Protocol I, albeit in more general terms of protecting the wounded, sick and shipwrecked, which means “coming to their defence, lending help and support.”285 This rule is codified as well in Protocol II.286 In addition, it is set forth in a number of other instruments pertaining to non-international armed conflict.287 280 Article 56 of the Fourth Geneva Convention states “medical personnel of all categories shall be allowed to carry out their duties.” 281 The possibility of calling upon the civilian population to assist in the search, collection and evacuation of the wounded, sick and shipwrecked is recognised in several articles of IHL treaties: see Article 5 of the 1864 Geneva Convention; Article 18 of the First Geneva Convention; Article 21 of the Second Geneva Convention; Article 17(2) of Additional Protocol I; Article 18(1) of Additional Protocol II. 282 For a review of the provisions granting humanitarian organisations the right to collect and provide medical care to the wounded, sick and shipwrecked, see Waldemar A. Solf, “Development and Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions,” in Chistophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, op. cit., pp. 237–248. 283 Article 79 of the Lieber Code; Article 6 of the 1864 Geneva Convention. 284 Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 16 of the Fourth Geneva Convention. 285 Commentary Article 10 of Protocol I, p. 146, para. 446. 286 Articles 7–8 of Additional Protocol II. 287 Article 3 of the 1990 Cairo Declaration on Human Rights in Islam (“in the event of the use of force and in case of armed conflict . . . the wounded and the sick shall have the right to medical treatment”); paras. 1 and 2 of the 1991 Hague Statement on Respect for Humanitarian Principles (“wounded and ill persons must be helped and protected in all circumstances”); Para. 1 of the 1991 Memorandum of Understand­ing on the Application of International Humanitarian Law between Croatia and the SFRY (“all wounded and sick on land shall be treated in accordance with the provisions of the First Geneva Convention”); Para. 2.1 of the 1992 Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina (the wounded, sick and shipwrecked “shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”); Article 4(2) and (9) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and

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The duty to collect and care for the wounded, sick and shipwrecked, whether military or civilian, is set forth in a number of military manuals,288 and the legislation of many States.289 In addition, the UN Commission of Enquiry on Darfur found the obligation to protect the wounded and the sick a customary rule in internal armed conflicts.290 The possibility of calling upon the civilian population to assist in the search, collection, and evacuation of the wounded, sick, and shipwrecked is similarly recognised in a number of military manuals.291 Sweden’s IHL Manual even considers that Article 17 of Protocol I on the role of aid organisations has the

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International Humanitarian Law in the Philippines (“the wounded and the sick shall be collected and cared for by the party to the armed conflict which has them in its custody or responsibility” and “every possible measure shall be taken, without delay, . . . to ensure their adequate care”); para. 1 of the Memorandum of Understanding on the Application of IHL between Croatia and the SFRY (“all wounded and sick on land shall be treated in accordance with the provisions of the First and Second Geneva Conventions of 12 August 1949”); Para. 2.1 of the Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina (“the treatment provided to the wounded, sick and shipwrecked shall be in accordance with the provisions of the First and Second Geneva Conventions of 12 August 1949”); Hague Statement on Respect for Humanitarian Principles (the Presidents of the six republics of the former Yugoslavia undertook “to apply the following fundamental principles: wounded and ill persons must be helped and protected in all circumstances”); Articles 4(2) and (9) of Part IV of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines (providing that the wounded and sick shall be searched for and collected). See the military manuals of Argentina, Australia, Belgium, Benin, Burkina Faso, Bosnia and Herzegovina, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, El Salvador, France, Germany, Hungary, India, Indonesia, Italy, Kenya, Lebanon, Madagascar, Mali, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Philippines, Romania, Rwanda, Senegal, South Africa, Spain, Sweden, Togo, Uganda, United Kingdom, United States and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2617–2625 and pp. 2592–2598. See the legislation of Argentina, Azerbaijan, Bangladesh, China, Colombia, Czech Republic, Democratic Republic of the Congo, Estonia, El Salvador, Iraq, Ireland, Italy, Nicaragua, Norway, Spain, Slovakia, Ukraine, Uruguay, Venezuela and Vietnam, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2625–2626 and pp. 2599–2600. Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral, Geneva, 25 January 2005, available at www.ohchr.org/ and cited in Marco Sassòli and Antoine A. Bouvier, (eds.), How Does Law Protect in War?, Vol. II, 2nd edition, ICRC, Geneva, 2006, pp. 1476–1477. See the military manuals of Argentina, Cameroon, Canada, Croatia, Germany, Kenya, New Zealand, Russia, Sweden, Switzerland, United Kingdom, United States and Yugoslavia,

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status of customary law.292 Respect for this rule was also required by Argentina’s National Court of Appeals in the Military Junta case in 1985.293 According to the Report on the Practise of Zimbabwe, “Zimbabwe seems to regard as customary the rules of international practise codified in the Geneva conventions as regards the . . . care of the wounded.”294 International organisations have also condemned violations of this principle.295 The rule that a party to the conflict has to search for, collect and evacuate the wounded, sick and shipwrecked, including permitting humanitarian organisations to provide to assist in their search and care, has also been recognised in United Nations practise. The UN Commission of Enquiry on Darfur found the following customary rules on internal armed conflicts the obligation to protect the wounded and the sick.296 The UN Security Council, UN General Assembly, and UN Commission on Human Rights have called upon the parties to the conflicts in EI Salvador and Lebanon to permit the ICRC to evacuate the wounded and sick.297 The Geneva Conventions and other instruments, such as the UN Secretary General’s Bulletin on observance by United Nations forces of international humanitarian law, state that cease-fires and other local arrangements are seen as appropriate ways to create the conditions in which the wounded and sick can be evacuated, and require the parties to the conflict to conclude such agreements, whenever circumstances permit, to remove,

reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2617–2625 and pp. 2592–2598. 292 Sweden, IHL Manual, 1991, Section 2.2.3, p. 18, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2597. 293 Argentina, National Court of Appeals, Military Junta case, Judgement, 9 December 1985, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2626. 294 Report on the Practice of Zimbabwe, 1998, Chapter 5.1, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2628. 295 UN Com­mission on Human Rights, Report of the Special Rapporteur on the Situation of Human Rights in Burundi, Initial report, UN Doc. E/CN.4/1996/16, 14 November 1995, para. 121; ONUSAL, Director of the Human Rights Division, Report for November and December 1991, UN Doc. A/46/876-S/23580, 19 February 1992, Annex, para. 170 296 Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral, Geneva, 25 January 2005, available at www.ohchr.org/ and cited in Marco Sassòli and Antoine A. Bouvier (eds.), How Does Law Protect in War?, Vol. II, op. cit., pp. 1476–1477. 297 UN Security Council, Resolution 436, 6 October 1978, para. 2; UN General Assembly, Resolution 40/139, 13 December 1985, para. 9; UN Commission on Human Rights, Resolution 1986/39, 12 March 1986, para. 6.

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exchange and transport the wounded from the battlefield.298 Many military manuals make the same point.299 However, in 1984 Cassese considered that Articles 8–17 of Protocol I regarding the treatment of the wounded, sick, and shipwrecked did not crystal­ lise into customary rules, as they do not possess generality of character.300 Furthermore, Lauri Hannikainen stated, “As regards the positive obligation to search for, collect and care for wounded, sick or shipwrecked members of armed forces, the belligerent parties do have such an obligation, but in this context it is hardly a peremptory obligation, since it is clearly subjected to military necessities.”301 As seen previously, these outdated statements should be nuanced in current practise, taking into account the developments in IHL. The provisions on the duty to collect wounded and sick are not subject to exceptions, and opinio juris, as demonstrated by State statements, national legislation, court decisions, military manuals, and resolutions from United Nations bodies demonstrate that the principle has been recognised widely by State practise. Consequently, this rule should be considered as a customary law norm in both international and non-international armed conflicts. In fact, due to the exacting and absolute character of the rule, its tendency toward universal application and its reach for the individual level,302 this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect this principle. 3.5 Search for and Collection of the Dead Humanitarian organisations are allowed to search for and collect the dead, if the Parties to the conflict appealed for them to do so. This right is specified in IHL treaties in a weaker way than the right to collect and care for the

298 Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 17 of the Fourth Geneva Convention; Section 9.2 of the UN Secretary-General’s Bulletin. 299 See the military manuals of Argentina, Australia, Cameroon, Canada, Ecuador, France, India, Kenya, Madagascar, Netherlands, New Zealand, Nigeria, Senegal, Spain, Switzerland, United Kingdom, United States and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2605–2609. 300 Antonio Cassese, “The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law,” op. cit., pp. 97–98. 301 Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., p. 655. 302 Georges Abi-Saab, “The Specificities of Humanitarian Law,” op. cit., p. 280.

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wounded, sick and shipwrecked.303 This right has been however granted to “National Societies,”304 medical personnel,305 religious personnel,306 “civil defence organisations,”307 civilians and “aid societies”308 in international conflicts.309 Other provisions in IHL treaties generally provide that parties to the conflict shall take measures to search for the dead, in both international and non-international armed conflicts.310 This obligation to search for the dead, and the role of humanitarian organisations in this task, is recognised in numerous military manuals. For example, Benin’s Military Manual provides that “Military commanders can make an appeal to the civilian population, to aid societies such as the National Red Cross or Red Crescent Societies . . . to collect . . . the dead.”311 Other manuals specify that civil defence organisations, aid societies, neutral merchant vessels,

303 See for exemple the distinction of language in Article 17 of Protocol I: “The civilian population and aid societies, such as national Red Cross (Red Crescent, Red Lion and Sun) Societies, shall be permitted, even on their own initiative, to collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas” (para. 1) and “The Parties to the conflict may appeal to the civilian population and the aid societies referred to in paragraph 1 to collect and care for the wounded, sick and shipwrecked, and to search for the dead and report their location” (para. 2). 304 Article 17 of Protocol I. 305 Article 81 of the 1913 Manual of the Laws of Naval War; Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 56 of the Fourth Geneva Convention. 306 Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention. 307 Article 61 of Protocol I. 308 Article 17 of Protocol I. 309 For a review of the provisions granting humanitarian organisations the right to collect and provide medical care to the wounded, sick and shipwrecked, see Waldemar A. Solf, “Development and Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions,” in Chistophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, op. cit., pp. 237–248. 310 Article 3 of the 1929 Geneva Convention; Article 15 of the First Geneva Convention; Article 18 of the Second Geneva Convention; Article 16 of the Fourth Geneva Convention; Articles 33 and 34 of Protocol I; Article 8 of Protocol II; Article 13 of the Declaration of Minimum Humanitarian Standards. 311 Benin, Military Manual, 1995, Fascicule II, p. 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2657.

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and National Societies can undertake this task. These include: Cameroon,312 Kenya,313 Togo,314 and the SFRY.315 Moreover, this duty has been recognised in national case law,316 and in States’ statements,317 in particular by the United States.318 This right has also been recognised by the United Nations.319 312 “In case of civilian losses, civil defence units and personnel shall participate in the search for the victims” and that “an appeal to the charity of the population can be made to help National Societies such as the Red Cross or the Red Crescent in order to collect . . . the dead:” Cameroon, Instructors Manual, 1992, p. 67, para. 241, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2657. 313 The manual provides that “civil defence unites and personnel shall participate in the search for victims, particularly when there are civilian casualties” and that “commanders may appeal to the civilian population, to aid societies such as National Red Cross or Red Crescent Societies and to commanders of neutral merchant vessels, yachts or other craft . . . to collect and identify the dead:” Kenya, Law of Armed Conflict Manual, 1997, Précis No. 3, p. 11, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2658. 314 “Military commanders can make an appeal to the civilian population, to aid societies such as the National Red Cross or Red Crescent Societies . . . to collect . . . the dead:” Togo, Military Manual, 1996, Fascicule II, p. 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2659. 315 This manual provides that the civilian population or humanitarian societies may, of their own initiative, collect the dead, while military commanders assist and supervise these groups: SFRY (FRY), YPA Military Manual, 1988, Article 166, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2659. 316 Israel’s High Court of Justice stated: “locating . . . the bodies is a highly important humanitarian deed. It is derived from the respect to the dead. The respect of every dead:” Jenin (Mortal Remains) case, Ruling, 14 April 2002, para. 9, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2660. 317 Reports on the Practise of Indonesia and Philippines, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2660. 318 In 1987, the Deputy Legal Advisor of the US Department of State affirmed “we support . . . the principle that each party to a conflict permit teams to search for . . . and recover the dead from the battlefield:” US, Remarks of Michael J. Matheson, Deputy Legal Advisor, US Department of State, in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional tot the 1949 Geneva Conventions, op. cit., p. 424. 319 In 1994, in its report on the violations of IHL committed in the former Yugoslavia, the UN Commission of Experts noted that “the Geneva Conventions require parties to a conflict to search for the dead:” UN Commission of Experts Established pursuant to Security

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Among scholars, only Cassese stated in 1984 that Articles 32–34 of Protocol I regarding dead persons do not possess the generality of character needed in order to crystallise into customary rules.320 Other scholars recognise this principle as customary.321 This right is not subject to exceptions, and as it has been recognised by sufficient State practise and opinio juris, this rule should be considered as a customary law norm in both international and non-international armed conflicts. 3.6 Right to Engage in the Task of Families’ Reunion This right has been granted to the ICRC,322 “National Societies,”323 and “organisations engaged in this task,”324 in international armed conflicts. 3.6.1 Content of the Rule This rule is motivated by the right of families to know the fate of their missing relatives, as stated in Protocol I.325 In reality, the right of families to know the fate of their relatives pre-existed the adoption of Protocol I.326 The Geneva Conventions in particular provide for the setting up of Information Bureaux whose role is to centralise and transmit information on prisoners and civilians belonging to an adverse party.327 This right is also set forth in other international instruments.328 The obligation to account for missing persons is also recognised in numerous agreements

320

321 322 323 324 325 326 327

328

Council Resolution 780 (1992), Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2, Vol. I, 31 May 1995, para. 503(b). Antonio Cassese, The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law, Pacific Basin Law Journal, Vol. 3, 1984, pp. 97–98. See Rules 112–116 of the ICRC study on Customary International Humanitarian Law. Commentary Article 26 of the Fourth Geneva Convention, p. 198; Article 33 of Protocol I. Commentary Article 26 of the Fourth Geneva Convention, p. 198; Article 33 of Protocol I. Article 26 of the Fourth Geneva Convention; Article 74 of Protocol I. Article 32 of Additional Protocol I. Commentary Article 32 of Protocol I, p. 347, paras. 1217–1218. Article 122 of the Third Geneva Convention, Article 136 of the Fourth Geneva Convention, Articles 16 and 17 of the First Geneva Convention and Article 19 of the Second Geneva Convention refer to the information bureaux established according to Article 122 of the Third Geneva Convention. See Principles 16(1) and 17(4) of the Guiding Principles on Internal Displacement, and Section 9.8 of the UN Secretary-General’s Bulletin.

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concerning international and non-international armed conflict.329 Moreover, the African Charter on the Rights and Welfare of the Child provides that if families are separated as a result of State action, the State must provide the children with essential information concerning the whereabouts of their family members.330 The Charter also provides that if separation is caused by displacement arising from an armed conflict, States must take all necessary measures to trace the parents or relatives of children.331 Significant practise has crystallised into a rule that parties to a conflict take all feasible measures to account for persons reported missing as a result of the conflict and to provide information to family members.332 The rule requiring 329 See for example para. 5 of the 1956 Joint Declaration on Soviet-Japanese Relations (“with regard to those Japanese whose fate is unknown, the USSR, at the request of Japan, will continue its effort to discover what has happened to them”); Article XIX of the 1994 IsraelPLO Agree­ment on the Gaza Strip, (“The Palestinian Authority shall cooperate with Israel by providing all necessary assistance in the conduct of searches by Israel within the Gaza Strip and the Jericho Area for missing Israelis . . . Israel shall cooperate with the Palestinian Authority in searching for . . . missing Palestinians”); Article 4(9) of Part IV of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines (“every possible measure shall be taken, without delay, to search for . . . missing persons”); Article 5 of the 1995 Agreement on Refugees and Displaced Persons annexed to the Dayton Accords (“the Parties shall provide information through the tracing mechanisms of the ICRC on all persons unaccounted for”); Article 6 of the Agreement on the Normalization of Relations between Croatia and the FRY (providing that the parties undertake to speed up the process of solving the question of missing persons); paras. 5–6 of the 1996 Protocol to the Moscow Agreement on a Cease-fire in Chechnya to Locate Missing Persons and to Free Forcibly Detained Persons (“5. the competence of the joint working group shall extend to the location of persons who have been missing since December 1994; 6. By 11 June 1996, the working groups shall exchange lists of forcibly detained persons”); Chapter Ill of the 1973 Agreement on Ending the War and Restoring Peace in Viet-Nam (providing that the parties were to help each other in obtaining information about military personnel and foreign civilians of the parties missing in action); para. 8 of the 1991 Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the SFRY, (“the parties agree to set up a Joint Commission to trace missing persons”); para. 2.1.1 and 2.2.2 of the Plan of Operation for the 1991 Joint Commission to Trace Miss­ing Persons and Mortal Remains and para. 3 of the 1992 Joint Declaration by the Presidents of the FRY and Croatia (“the two Presidents further agree that their representatives will provide for an exchange of information on missing persons”). 330 Article 19(3) of the African Charter on the Rights and Welfare of the Child. 331 Article 25(2)(b) of the African Charter on the Rights and Welfare of the Child. 332 Louise Doswald Beck, “Developments in Customary International Humanitarian Law,” Revue suisse de droit international et européen, No. 3, 2005, p. 488.

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parties to the conflict to search for missing persons is set forth in a number of military manuals333 and national legislation.334 For example, Argentina’s Law of War Manual reproduces Article 74 of Protocol I.335 The Annotated Supplement to the US Naval Handbook provides that “the United States supports the principles in (Protocol I), Article 74, that nations facilitate in every possible way the reunion of families dispersed as a result of armed conflict and encourage the work of humanitarian organizations engaged in this task.”336 It is supported by State statements.337 At a Conference on Humanitarian Law, the delegate of the United States stated that he supported the principles, reflected in Articles 32 and 33 of Protocol I, that families have a right to know the fate of their relatives and that each party to a conflict should search areas under its control for persons 333 See the military manuals of Argentina, Australia, Canada, Croatia, Hungary, Indonesia, Israel, Kenya, Madagascar, Netherlands, New Zealand and Spain, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2743–2744. 334 See the legislation of Azerbaijan and Zimbabwe, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2744–2745. 335 Argentina, Law of War Manual, 1989, para. 4.14, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2529. 336 US, Annotated Supplement to the Naval Handbook, 1997, para. 11.4, footnote 19, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2530. 337 See the statements of the Federal Republic of Germany (which stated that the draft rule that each party to the conflict should try to obtain information on mission persons would meet a “fundamental humanitarian need, which was not yet fully and explicitly covered by existing treaty obligations:” Statement at the CDDH, Official Records, Vol. XI, CDDH/ II/SR.19, 13 February 1975, p. 186, paras. 79–80), Germany (stating that the German delegation had taken the initiative in the Security Council to push for measures to be taken to establish the whereabouts of missing Bosnian men: Germany, Statement before the UN Security Council, UN Doc. S/PV.3591, 9 November 1995, pp. 2–3) and United States (“we support the principle that . . . each party to a conflict should search areas under its control for persons reported missing, when circumstances permit, and at the latest from the end of active hostilities:” US, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, in “The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocol Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy, Vol. 2, 1987, p. 424). Moreover, in 1995, during a debate in the UN Security Council concerning Bosnia and Herzegovina, the US stated, with respect to the civilians missing, that “we have a responsibility to investigate, to find out what we can:” US, Statement before the UN Security Council, UN Doc. S/PV.3564, 10 August 1995, p. 6.

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reported missing, when circumstances permit, and at the latest from the end of active hostilities.338 The United States delegate also voiced support of the principle that States facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and encourage, in particular, the work of humanitarian organisations engaged in this task, mentioned in Article 74 of Protocol I.339 International organisations have, on several occasions, additionally requested that persons missing as a result of the conflicts in Bosnia and Herzegovina, Cyprus, East Timor, Guatemala, Kosovo and the former Yugoslavia be accounted for. This right has been declared by the Security Council,340 the General Assembly,341 the Commission on Human Rights,342 the Council of Europe,343 and the European Parliament.344 Several resolutions adopted at the international level state the general duty to clarify the fate of missing persons. For example, the UN General Assembly called on parties to armed conflicts, regardless of their character, “to take such action as may be within their power . . . to provide information about those who are missing in action.”345 In a resolution on missing persons in 2002, the UN Commission on Human Rights reaffirmed that each party to an armed conflict “shall search for the persons who have been reported missing by an adverse

338 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 424. 339 Ibid., p. 427. 340 UN Security Council, Statement by the President, UN Doc. S/PRST/1996/41, 10 October 1996, p. 1. 341 UN General Assembly, Resolution 54/183, 17 December 1999, para. 18; Resolution 49/196, 23 December 1994, para. 25; Resolution 50/193, 22 December 1995, paras. 22 and 28. 342 UN Commission on Human Rights, Resolution 1987/50, 11 March 1987, p. 113, para. 3; Resolution 1994/72, 9 March 1994, para. 23; Resolution 1995/35, 3 March 1995, paras. 2–5; Resolution 1998/79, 22 April 1998, paras. 37–42. 343 Council of Europe, Parliamentary Assembly, Recommendation 974, 5 November 1983, p. 81; Recommendation 1056, 5 May 1987, para. 7; Resolution 1066, 27 September 1995, p. 2, para. 6; Recommendation 1385, 24 September 1998, para. 7, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2748. 344 European Parlia­ment, Resolution on the violation of human rights in Cyprus, 12 July 1990, para. D and 2, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2755. 345 UN General Assembly, Res. 3220 (XXIX), 6 November 1974, para. 2.

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party.”346 The 26th and 27th International Conferences of the Red Cross and Red Crescent strongly urged all parties to an armed conflict to provide families with information on the fate of their missing relatives.347 The right of families to know the fate of their missing relatives is set forth in a number of military manuals348 and official statements.349 This right is further supported by a number of resolutions of the European Parliament or the Parliamentary Assembly of the Council of Europe,350 and the International Conference of the Red Cross and Red Crescent.351 These resolutions are not limited to international armed conflicts. The requirement of States to provide information to families regarding the whereabouts of family members has also been influenced by human rights law.352 Case-law confirms that it is prohibited to withhold deliberately from families information on missing relatives, as stated by the UN Human 346 UN Commission on Human Rights, Res. 2002/60, 25 April 2002, paras. 3–5. 347 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution II, para. D; 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Resolution I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, para. 1. 348 See the military manuals of Argentina, Australia, Cameroon, Canada, Kenya, Israel, Madagascar, New Zealand, Spain, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2766–2767. 349 See the statements of Austria, Cyprus, France, Germany, Greece, Holy See, Nicaragua, Spain and United States at the CDDH, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2768–2769. 350 European Parliament, Resolution on the problem of missing persons in Cyprus, 11 January 1983, paras. E and H; Council of Europe, Parliamentary Assembly, Recommendation 868, 5 June 1979, paras. 7–12 and Recommendation 1056, 5 May 1987, paras. 7–8, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2763–2771. 351 25th International Conference of the Red Cross, Geneva, 23–31 October 1986, Res. XIII, preamble; 26th International Con­ference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Res. II, para. D; 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 october–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, para. 1(e) reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2771–2772. See also International Conference for the Protection of War Victims, Geneva, 30 August– 1 September 1993, Final Declaration, para. I(1) 352 Louise Doswald Beck, “Developments in Customary International Humanitarian Law,” op. cit., p. 488.

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Rights Committee,353 the European Court of Human Rights,354 and the InterAmerican Court of Human Rights.355 Scholars do not all agree that the principle of searching for missing persons is part of customary international law. In 1984, the Swedish Committee on International Humanitarian Law also considered that Sweden has “all reasons to follow, in all circumstances, other articles in Additional Protocol I that are important in humanitarian perspective, even where these have little or no connection with customary law. These articles concern . . . reunion of families (Article 74).”356 This statement was made only a few years after the adoption of Protocol I, so it should be nuanced. On the contrary, Gerald Draper suggested that Article 46 of the 1907 Hague Convention IV provides that: “Family honour and rights . . . must be respected,” is part of customary international law and therefore this implies that Article 26 of the Fourth Geneva Convention is also part of customary law.357 3.6.2 Obligation to Conform to Security Regulations The Fourth Geneva Convention and Protocol I state that parties to the conflict shall encourage the work of organisations engaged in family reunion provided they conform to security regulations.358 This refers to security regulations laid

353 UN Human Rights Committee, Quinteros v. Uruguay, Views, 21 July 1983, para. 14, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2772. 354 European Court of Human Rights, Kurt v. Turkey, Judgement, 25 May 1998, paras. 130–134; Timurtas v. Turkey, Judgement, 13 June 2000, para. 98; Cyprus case, Judgement, 10 May 2001, paras. 157–158, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2772. 355 Inter-American Court of Human Rights, Velasquez Rodriguez case (Judgement, 29 July 1988, para. 181). The Court also stated that, in the event of the death of a victim, the State is obliged to give information to the relatives on where the remains of the deceased person are located: Inter-American Court of Human Rights, Bamaca Velasquez case, Judgement, 25 November 2000, paras. 165–166 and Bamaca Velasquez case (Reparations), Judgement, 22 February 2002, para. 76, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2772–2773. 356 “Report of the Swedish International Humanitarian Law Committee, Stockholm, 1984,” in Marco Sassòli and Antoine A. Bouvier (eds.), How Does Law Protect in War?, op. cit., p. 969. 357 Gerald Draper, “La réunion des familles en période de conflit armé,” Revue internationale de la croix-rouge, No. 698, février 1977, p. 66. 358 Article 26 of the Fourth Geneva Convention; Article 74 of Protocol I.

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down by the parties to the conflict.359 This condition was not mentioned in the draft article submitted to the XVIIth International Red Cross Conference; it was introduced at Geneva in 1949.360 Without further details, it was then added as a requirement in Protocol I. Consequently, the Parties to the conflict have an obligation to facilitate in every possible way the work of the humanitarian organisations engaged in the reunion of families dispersed as a result of armed conflict and this rule can be considered as customary in international armed conflict due to sufficient State practise and opinio juris, as reflected in State statements, legislation, military manuals and United Nations resolutions. 4

A General Customary Right to be Respected and Protected

4.1 Organisations and Goods That are to be Respected and Protected These include medical and religious personnel, civil defence organisations, all NGOs providing relief and humanitarian aid, civilians and objects of NGOs. 4.1.1 Medical Personnel The rule that medical personnel should be protected dates back to the 1864 Geneva Convention and was repeated in the 1906 and 1929 Conventions.361 It is also set forth in the 1949 Geneva Conventions.362 Article 15 of Protocol I and Article 9 of Protocol II are, however, the main provisions protecting civilian medical personnel. Civilians caring for wounded and sick combatants and civilians,363 and voluntary aid societies364 are also protected in providing relief to sick and wounded. Article 8(2) of the Statute of the ICC provides that “intentionally directing attacks against . . . personnel using the distinctive

359 Commentary Article 26 of the Fourth Geneva Convention, p. 197; Commentary Article 74 of Protocol I, p. 858, para. 2999. 360 Commentary Article 26 of the Fourth Geneva Convention, p. 198. 361 Article 2 of the 1864 Geneva Convention; Articles 9 and 10 of the 1906 Geneva Convention; Articles 9 and 10 of the 1929 Geneva Convention. 362 Articles 24–26 of the First Geneva Convention; Article 36 of the Second Geneva Convention; Article 20 of the Fourth Geneva Convention. 363 Article 18 of the First Geneva Convention; Article 20 of the Fourth Geneva Convention. 364 Articles 26 and 27 of the First Geneva Convention; Articles 25 and 36 of the Second Geneva Convention; Article 9 of Protocol I.

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emblems of the Geneva Conventions” constitutes a war crime. This prohibition is also contained in Paragraph 17 of the Hague Statement on Respect for Humanitarian Principles. Personnel of civilian hospitals have also been protected early on by the laws of war.365 The principle was already recognised in the 1907 Hague Regulations366 and Hague Convention IX.367 A practise of States developed in Europe at the beginning of the twentieth century to mark civilian hospitals by protective signs.368 The Fourth Geneva Convention offers protection to the persons regularly and solely engaged in the operation and administration of civilian hospitals.369 Immunity is accorded to temporary personnel for the period during which they are employed in the hospital.370 Such personnel should be identified.371 The hospitals allowed to use the emblem must also be authorised by the State and provided by it with a certificate.372 It is not specified what authority is to issue the certificate of recognition; States are therefore free to delegate their powers to a governmental institution or an NGO (like the National Society).373 Such a hospital does not need to be a permanent hospital; it can be improvised for temporary use.374

365 On this subject, see also Lucie Odier, “La protection des hôpitaux civils et de leur personnel en temps de guerre,” Revue internationale de la croix-rouge, No. 403, juillet 1952, p. 542. 366 Article 27 of the 1907 Regulations concerning the Laws and Customs of War on Land: see Alexander Meyer, “Protection juridique des militaires blessés et malades dans les hôpitaux civils: Article 21 du Règlement de La Haye du 18 octobre 1907 concernant les lois et coutumes de la guerre sur terre,” Revue internationale de la croix-rouge, janvier 1943, pp. 65–69. 367 Article 5 of the 1907 Hague Convention IX on bombardment by naval forces. 368 Oscar Uhler, “Civilian Hospitals and their Personnel,” International Review of the Red Cross, August–October 1953, pp. 2–3 369 Articles 18 and 20 of the Fourth Geneva Convention. See also Jean-Pierre Schoenholzer, Nurses and the Geneva Conventions of 1949, ICRC, Geneva, 1957, p. 10. 370 Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., pp. 36–38. 371 On this question, see Fréderic Mulinen, “La signalisation et l’identification du personnel et du matériel sanitaire,” Revue internationale de la croix-rouge, 1972, pp. 529–538. 372 Jean-Pierre Schoenholzer, “Nurses and the Geneva Conventions of 1949,” op. cit., pp. 15–16; Final Record, Committee III, Vol. II-A, p. 633. 373 Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit. p. 14; Final Record, Vol. II-B, p. 469. 374 Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., pp. 7–8.

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The protection granted to medical personnel also includes the protection of medical units,375 medical transports,376 and medical objects.377 Hospital planes378 and boats379 are also therefore protected. 375 Article 27 of the 1899 and 1907 Hague Regulations; Article 19 of of the First Geneva Convention; Article 18 of the Fourth Geneva Convention; Article 12 of Protocol I; Article 3 common; Article 11 of Protocol II. The term ‘medical units’ refers to establishments and other units, organised for medical purposes, be they fixed or mobile, permanent or temporary. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres, medical and pharmaceutical stores: see Article 8 of Protocol I. 376 Article 35 of the First Geneva Convention; Article 34 of the Second Geneva Convention; Article 21 of the Fourth Geneva Convention; Article 21 of Protocol I and Article 11 of Protocol II. The term refers to any means of transportation, by land, water or air, such as ambulances, hospital ships and medical aircraft: see Article 8 of Protocol I. 377 See Article 8 of the ICC Statute. 378 On this topic, see Charles L. Julliot, La Convention de Genève de 1929 et l’immunisation des appareils sanitaires aériens: Projet d’une convention additionnelle pour l’adaptation à la guerre aérienne des principes de la Convention de Genève, Genève, CICR, 1929; Charles L. Julliot, “Le nouveau projet de Convention additionnelle à la Convention de Genève du 27 juillet 1929, concernant l’emploi des aéronefs sanitaires en temps de guerre,” Revue internationale de la croix-rouge, février 1935, pp. 79–99; Edward R. Cummings, “The Juridical Status of Medical Aircraft under the Conventional Law of War,” Military Law Review, Vol. 66, 1974, pp. 105–141; Huguette Deslandes-Grandpre, “L’évolution du concept de l’immunisation des aéronefs sanitaires: Article 18 de la Convention de Genève,” Revue générale de droit aérien, Vol. 7, No. 1, 1938, pp. 21–28; Janine Devilliers, L’aviation sanitaire au point de vue du droit international, Paris, Les éditions internationales, 1933; Philippe Eberlin, “L’identification des aéronefs sanitaires en période de conflit armé,” Revue internationale de la croix-rouge, No. 736, juillet-aôut 1982, pp. 210–223; Edgard Evrard, La protection des transports aériens sanitaires en temps de guerre et la Convention de Genève, Acta Belgica de Arte Medicinali et Pharmaceutica Military, Bruxelles, juin 1963, pp. 439–466; Edgard Evrard, “La protection juridique des transports aériens sanitaires en temps de guerre,” Revue internationale de la croix-rouge, juillet 1966, pp. 309–330; Edgard Evrard, “Le nouveau statut protecteur des transports sanitaires par voie aérienne en temps de conflit armé,” Revue générale de droit international public, Vol. 82, No. 1, 1978, pp. 221–234; Paul de la Pradelle et Edgard Evrard, “Vers un nouveau statut de l’aviation sanitaire en temps de conflit armé,” Annales de droit international médical, No. 24, septembre 1973, pp. 47–74; Paul de La Pradelle, “L’aviation sanitaire à la Conférence Diplomatique de Genève,” Revue générale de droit aérien, Vol. 12, No. 5, 1949, pp. 573–582; Paul de la Pradelle, “La protection de l’aviation sanitaire en temps de conflit,” Revue internationale de la croix-rouge, septembre 1967, pp. 391–405; Tomaso Lomonaco, “Assistantes sanitaires de l’air,” Revue internationale de la croix-rouge, janvier 1967, pp. 12–17; A. Schickele, “Aviation sanitaire et Convention de Genève,” Revue générale de l’air, Vol. 13, 1950, pp. 847–854. 379 Philippe Eberlin, “Identification des navires-hôpitaux et des navires protégés par les Conventions de Genève du 12 août 1949,” Revue internationale de la croix-rouge, No. 738,

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Under the legislation of many States, which generally refer to medical personnel without distinguishing between military or civilian personnel, it is a war crime to violate the rule of their protection, as mentioned under the Criminal Code of Bosnia and Herzegovina,380 the Criminal Code of the Republika Srpska,381 the Criminal Code of Croatia,382 El Salvador’s Code of Military Justice,383 Ethiopia’s Penal Code,384 Georgia’s Criminal Code,385 Italy’s Law of War Decree,386 Romania’s Penal Code,387 Slovenia’s Penal Code,388 Tajikistan’s Criminal Code,389 Ukraine’s Criminal Code,390 and Venezuela’s Code of Military Justice.391 This rule is also declared in a number of military manuals.392 This is supported by official statements of States. At a Conference on Humanitarian Law, the delegate of the United States stated that the State supported the principle that medical units, including properly authorised civilian novembre–décembre 1982, pp. 325–339; Philippe Eberlin, “La protection des bateaux de sauvetage en période de conflit armé,” Revue internationale de la croix-rouge, No. 753, mai–juin 1985, pp. 140–153; J. Galloy, L’inviolabilité des navires-hôpitaux et l’expérience de la guerre 1914–1918, Paris, Sirey, 1931; Gilbert Gidel, “La protection des embarcations de sauvetage,” Revue internationale de la croix-rouge, septembre 1955, pp. 549–558; J.C. Mossop, “Hospital Ships in the Second World War: Notes,” British Yearbook of International Law, Vol. 24, 1947, pp. 398–406. 380 Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 155, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 466. 381 Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 434, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 466. 382 Croatia, Criminal Code, 1997, Article 159, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 467. 383 El Salvador, Code of Military Justice, 1934, Article 69, Ibid. 384 Ethiopia, Penal Code, 1957, Article 283, Ibid. 385 Georgia, Criminal Code, 1999, Article 411, Ibid. 386 Italy, Law of War Decree, 1938, Article 95, Ibid. 387 Romania, Penal Code, 1968, Article 358, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 468. 388 Slovenia, Penal Code, 1994, Article 375, Ibid. 389 Tajikistan, Criminal Code, 1998, Article 403, Ibid. 390 Ukraine, Criminal Code, 2001, Article 414, Ibid. 391 Venezuela, Code of Military Justice, 1998, Article 474, Ibid. 392 See the military manuals of Argentina, Australia, Belgium, Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, El Salvador, France, Germany, Hungary, Indonesia, Israel, Italy, Kenya, South Korea, Lebanon, Madagascar, Mali, Morocco, The Netherlands, New Zealand, Nicaragua, Nigeria, Romania, Senegal, South Africa, Spain, Sweden, Switzerland, Togo, United Kingdom, United States and the Federal Republic of Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 457–466.

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medical units, be respected and protected at all times and not be the object of attacks or reprisals, the principle that civilian medical and religious personnel were likewise be respected and protected.393 Moreover, alleged attacks against medical personnel have generally been condemned by international organisations, including the UN General Assembly,394 the Human Rights Commission,395 the UN Commission of Experts,396 the Council of Europe,397 the International Conference for the Protection of War Victims,398 and the Conference of African Ministers of Health.399 In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts even linked attacks on medical personnel to “ethnic cleansing.”400 This view is generally supported by the academic literature. The Rules of International Humanitarian Law Governing the Conduct of Hostilities in Noninternational Armed Conflicts state that “the obligation to respect and protect medical . . . personnel . . . in the conduct of military operations is a general rule applicable in non-international armed conflicts.”401 For Lauri Hannikainen, the respect for medical personnel is a peremptory norm of international law.402 393 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 423. 394 UN General Assembly, Resolution 39/119, 14 December 1984, para. 9; Resolution 40/139, 13 December 1985, para. 3; Resolution 41/157, 4 December 1986, para. 9. 395 UN Commission of Human Rights, Resolution 1987/51, 11 March 1987, para. 5; UN SubCommission on Human Rights, Resolution 1985/18, 29 August 1985, para. 4. 396 UN Commission of Experts Established pursuant to Security Council Resolution 935 (1994), Final Report, UN Doc. S/1994/1405, 9 December 1994, paras. 73–92. 397 Council of Europe, Parliamentary Assembly, Res. 904, 30 June 1988, para. 14 and Annex, para. 1, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 475. 398 International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, para. II, International Legal Materials, Vol. 33, 1994, p. 301. 399 Conference of African Ministers of Health, Cairo, 26–28 April 1995, Res. 14 (V), para. 5, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 475. 400 UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final Report, UN Doc. S/1994/674, 27 May 1994, paras. 133–134. 401 “Rules of International Humanitarian Law Governing the Conduct of Hostilities in Noninternational Armed Conflicts,” Rule A5, in International Review of the Red Cross, No. 278, 1990, p. 391. 402 This is due to the fact that the 1864 and 1906 Geneva Conventions and 1899 and 1907 The Hague Conventions were ratified by ‘virtually all members of the society of States’,

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However, according to Cassese, the protection of medical and religious personnel and units do not reflect a general consent of States going beyond their contractual nature and therefore are not part of customary law.403 Military manuals404 and national legislation405 provide that medical transports shall not be attacked. This prohibition has also been referred to by the UN Security Council406 and the Commission on Human Rights.407 Similarly, the respect for and protection of medical units is a rule entrenched in military manuals,408 national legislation,409 and recognised

403 404

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and in these provisions, the obligations of respect appear to have been meant to have a absolute character: Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, op. cit., pp. 97–101. Antonio Cassese, “The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law,” op. cit., p. 110. See the military manuals of Argentina, Australia, Belgium, Benin, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, France, Germany, Italy, Kenya, Lebanon, Mali, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria, Russia, Senegal, Spain, Sweden, Switzerland, Togo, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 549–554. See the legislation of Argentina, Bangladesh, Colombia, El Salvador, Estonia, Germany, Ireland, Italy, Lithuania, Nicaragua, Norway, Romania, Spain and Venezuela, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 555–557. UN Security Council, Resolution 771, 13 August 1992, preamble and paras. 2 and 3. UN Commission on Human Rights, Resolution 1992/S-1/1, 14 August 1992, preamble; Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report, UN Doc.E/CN.4/1994/3, 5 May 1993, paras. 21–22. See the military manuals of Argentina, Australia, Belgium, Benin, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, France, Germany, Israel, Italy, Kenya, South Korea, Lebanon, Madagascar, Mali, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria, Romania, Russia, Senegal, Spain, Sweden, Switzerland, Togo, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 510–517. See the legislation of Argentina, Australia, Azerbaijan, Bangladesh, Bosnia and Herzegovina, Burundi, Canada, Chile, China, Colombia, Congo, Croatia, Dominican Republic, El Salvador, Estonia, Georgia, Germany, Guatemala, Iraq, Ireland, Italy, Lithuania, Mexico, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Slovenia, Spain, Sweden, Tajikistan, Trinidad and Tobago, Ukraine, United Kingdom, United States, Uruguay, Venezuela and the Federation of Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 517–523.

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by the UN Security Council,410 General Assembly,411 and Human Rights Commission.412 4.1.2 Religious Personnel The rule that (military) religious personnel must be respected and protected dates back to the 1864 Geneva Convention and was repeated in the 1906 and 1929 Conventions.413 The 1949 Geneva Conventions also provide for protection of military religious personnel. In these texts, protection has only been accorded to chaplains attached to armed forces,414 religious personnel of hospital-ships,415 and religious personnel attached to the armed forces and assigned to the spiritual care of the wounded covered by the Second Convention.416 Protocol I extended such protection to all civilian medical and religious personnel.417 Article 15 of Protocol I provides that civilian religious personnel shall be respected and protected. The same article adds that provisions of the Geneva Conventions and Protocol I concerning the protection and identification of medical personnel shall apply equally to such persons. The majority of civilian religious personnel, that is, those carrying out their function among the civilian population, are not covered by Article 15 of Protocol I. However, such personnel remain covered by the general protection accorded to the population and all civilians.418

410 UN Security Council, Resolution 771, 13 August 1992, preamble and paras. 2 and 3; Resolution 794, 3 December 1992, preamble and para. 5; Resolution 1265, 17 September 1999, para. 2. 411 UN General Assembly, Resolution 39/119, 14 December 1984, para. 9; Resolution 40/139, 13 December 1985, para. 3; Resolution 41/157, 4 December 1986, para. 4. 412 UN Commission on Human Rights, Resolution 1983/5, 15 February 1983, para. 2; Resolution 1987/51, 11 March 1987, para. 5; UN Sub-Commission on Human Rights, Resolution 1985/18, 29 August 1985, para. 4. 413 Article 2 of the 1864 Geneva Convention; Article 9 of the 1906 Geneva Convention; Article 9 of the 1929 Geneva Convention. 414 Article 24 of the First Geneva Convention. 415 Article 36 of the Second Geneva Convention. 416 Article 37 of the Second Geneva Convention. 417 Commentary Article 15 and Article 8 of Protocol I, pp. 189 and 124. 418 Commentary Article 15 of Protocol I, p. 195, paras. 637–638.

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Protocol II also provides explicitly for religious personnel to be respected and protected.419 The Rome Statute of the International Criminal Court further strengthened the existing protection afforded to religious personnel.420 In accordance with the definition of Article 8(d) of Protocol I, religious personnel are currently defined as “military or civilian persons such as chaplains who are exclusively engaged either temporarily or permanently in the work of their ministry (spiritual assistance) and attached to the armed forces or to medical units, medical transports, or civil defence organisations.”421 To be protected, religious personnel should be identifiable. The armlet with the distinctive emblem of the Red Cross or Red Crescent and an identity card are the external signs of the protection to which religious personnel are entitled.422 In addition, they should wear headgear and clothing bearing the distinctive emblem when carrying out their duties.423 For civilian religious personnel, the rule regarding identification is imposed only “in occupied territory and in areas where fighting is taking place or is likely to take place.”424 Religious personnel attached to a civil defence unit may also use the Red Cross/Red Crescent emblem instead of the distinctive emblem of civil defence organisations.425 Protection of religious personnel applies throughout the duration of their missions, including times when such personnel temporarily do not carry out their duties.426 419 See Article 9 (1) of Protocol II, where the definition of “religious personnel” given in Article 8 (d) of Protocol I is applied. See also Jean-Luc Hiebel, Assistance spirituelle et conflits armés, Henry Dunant Institute, Geneva, 1980, p. 355. 420 See Article 8(b)xxiv of the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9. This article criminalizes intentionally directing attacks against personnel using the distinctive emblem. The specific mention made of them in various elements of crimes adds to the protection of religious personnel from being murdered, mutilated, treated cruelly, tortured, degraded, taken hostage, and sentenced without due process. 421 Verri Pietro Dictionary of the International Law of Armed Conflict, ICRC, Geneva, 1992, p. 97. 422 Article 40 of the First Geneva Convention; Article 42 of the Second Geneva Convention; Article 18 of Protocol I; Article 12 of Protocol II. 423 Article 4(2) of Annex I to Protocol I; Article 5(4) of Annex I to the Protocol I. 424 Article 18(3) of Protocol I. 425 Article 15 of Protocol I. See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for the Victims of Armed Conflicts, Martinus Nijhoff Publishers, The Hague, 1982, p. 395. 426 Commentary Article 18 of Protocol II, p. 1421.

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Many of the rules regarding religious personnel have been inserted in national legislations. For example, the national laws of Argentina, Croatia, El Salvador Estonia, Georgia, Italy, Spain, Nicaragua, Poland, Slovenia, and Tajikistan all provide for the protection and respect of religious personnel, in internal and international armed conflicts.427 States have made similar statements in various fora. In 1980, in a draft resolution, the Parliamentary Assembly of the Council of Europe stated that it was appalled by the inhuman treatment inflicted by the military government on certain ecclesiastic figures.428 The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 urged all States to “make every effort” to protect religious personnel.429 At a Conference on Humanitarian Law, the delegate of the United States stated that the US supported the principle that religious personnel be respected and protected under the terms of Article 15 of Protocol I.430 4.1.3 Civil Defence Organisations Civilian civil defence organisations and their personnel are to be respected and protected.431 Members of civil defence personnel are also “protected as civilians.”432 In addition, “civilians who . . . respond to an appeal from the 427 Argentina, Draft Code of Military Justice, 1998, Article 292; Croatia, Criminal Code, 1997, Article 159; El Salvador, Draft Amendments to the Penal Code, 1998, Article entitled “Ataque a personas protegidas”; Estonia, Penal Code, 2001, para. 102; Georgia, Criminal Code, 1999, Article 411; Italy, Law of War Decree, 1938, Article 95; Nicaragua, Military Penal Code, 1996, Article 57; Spain, Military Criminal Code, 1985, Article 77; Nicaragua, Draft Penal Code, 1999, Article 449; Poland, Penal Code, 1997, Article 123; Slovenia, Penal Code, 1994, Article 375; Tajikistan, Criminal Code, 1998, Article 403, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 503–504. 428 Council of Europe, Parliamentary Assembly, Report on the situation in Bolivia (General policy of the Council of Europe), Draft resolution, Doc. 4620, 29 September 1980, para. 5, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 505. 429 International Conference for the Protection of War Victims, Geneva, 30 August– 1 September 1993, Final Declaration, para. II, in International Legal Materials, Vol. 33, 1994, p. 301. 430 Martin D. Dupuis, John Q. Heywood and Michèle Y.F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 423. 431 Article 62 of Protocol I. 432 Commentary Article 62 of Protocol I, p. 739, para. 2440. See also Article 51 of Protocol I.

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competent authorities and perform civil defence tasks under their control” should be protected.433 A civilian who cooperates with military units is not deprived of its protection.434 Finally, the personnel of civilian civil defence organisations of neutral States who perform civil defence tasks on the territory of a warring party with the latter’s consent and under its control is protected.435 Civil defence organisations are protected by the use of the emblem. The use of emblems for civil defence organisations was the subject of much discussion at a recent conference. A working group has been constituted to make recommendations in this regard. The working group’s conclusions were that medical services operated by civil defence organisations could claim protection by displaying either the Red Cross and Red Crescent emblem or the International Civil Defence emblem. After considerable discussion, the view prevailed that private organisations working officially in the civil defence field should not be forbidden from using their own signs or symbols in addition to the international emblem. However, only the international civil defence emblem provides protection.436 The principle of protection of civil defence organisations is supported by States. At a Conference on Humanitarian Law, the delegate of the United States supported the principle that civilian civil defence organisations and their personnel be respected and protected as civilians and be permitted to perform their civil defence tasks except in cases of imperative military necessity.437 This rule has also been recognised in military manuals.438 In

433 Article 62 of Protocol I. 434 Bosko Jakovljevic, “New International Status of Civil Defence as an Instrument for Strengthening the Protection of Human Rights,” op. cit., p. 41. 435 Article 64 of Protocol I. The activities of the civil defence organisations must be performed “with due regard to the security interests of the Parties to the conflict concerned.” 436 Stéphane Jeannet (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, op. cit., pp. 64–66. 437 Martin D. Dupuis, John Q. Heywood and Michèle Y. F. Sarkof (Rapporteurs), The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, op. cit., p. 427. 438 The code of Lithuania provides for the protection of “civilian defence personnel, military or civilian hospitals, health centres, vehicles transporting the wounded and sick:” Lithuania, Criminal Code, 1961, Article 337, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 467.

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particular, military manuals protect civil defence organisations, since medical personnel include personnel attached to civil defence units.439 4.1.4 All NGOs Providing Relief and Humanitarian Aid As seen in Chapters 2 and 3, the definitions of NGOs in international humanitarian law texts are overlapping. This overlap is also found in national military manuals and legislations, as well as in the resolutions of international organisations. Accordingly, several provisions of IHL treaties provide for a general protection of relief personnel and their goods.440 This rule should be understood as providing protection to all humanitarian NGOs acting in times of armed conflict, even in non-international conflict.441 Moreover, several provisions confer protection to civilian hospital-ships/medical personnel of relief societies and impartial humanitarian bodies.442 Under Article 8(2) of the Statute of the ICC and Article 4 of the Special Court for Sierra Leone, intentionally directing attacks against personnel involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is a war crime. In addition, this rule is contained in a number of other instruments relating to non-international armed conflicts.443 439 See for example Canada, LOAC Manual, 1999, pp. 9–3, para. 27 cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 459. 440 According to Article 71 of Protocol I, relief personnel shall be respected and protected. According to Article 70 of Protocol I, the Parties to the conflict shall protect relief consignments. 441 While Article 18 of Protocol II requires that relief actions for the civilian population in need be organised, it does not explicitly require the protection of humanitarian relief personnel. This rule is indispensable, however, if relief actions for civilian populations are to succeed: see ICRC, Customary International Humanitarian Law, Rules, Vol. I, op. cit., p. 106. 442 Articles 2 common of the 1899 The Hague Convention III and 1907 The Hague Convention X as well as Article 42 of the 1913 Manual of the Laws of Naval War provide that “hospital ships, equipped wholly or in part at the cost of private individuals or officially recognized relief societies, shall be respected and exempt from capture.” Article 24 of the Second Geneva Convention provides protection for “hospital ships utilised by National Red Cross Societies, by officially recognized relief societies or by private persons.” Article 25 of the Second Geneva Convention reproduces Article 24, apart from the difference that it concerns relief societies of neutral countries. According to Article 22 of Protocol I, hospital ships made available for humanitarian purposes by an impartial international humanitarian organisation shall be protected. 443 Para. 2 of the Agreement No. 2 on the Implementation of the Agreement of 22 May 1992 between the Parties to the Conflict in Bosnia and Herzegovina; Para. II of the Agreement No. 3 on the ICRC Plan of Action between the Parties to the Conflict in Bosnia and

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A number of national legislations and military manuals provide for the protection of ‘aid societies’ or ‘aid organisations’, without giving a precise definition of the term: Argentina’s Draft Code of Military Justice,444 Columbia’s Emblem Decree,445 Spain and Nicaragua’s Military Penal Code,446 Canada’s Law of Armed Conflict Manual,447 Sweden’s IHL Manual,448 and Poland’s Penal Code.449 Other national legislations and military manuals provide for the respect and protection of humanitarian NGOs in more general terms, using for example the expressions of “persons who, permanently or temporarily, provide humanitarian services and transports of medicine, food and humanitarian aid,”450 “civilian defence personnel, military or civilian hospitals, health centres, vehicles transporting the wounded and sick,”451 “any other person attending to the sick or wounded persons . . . (as well as) a representative of a humanitarian organisation performing his/her duties in a war zone,”452 “members of . . . the Red Cross or any other organisation assimilated with it,”453 “NGOs such as CARE

Herzegovina; Para. 2 of the Bahir Dar Agreement; Para. 8 of the Agreement on Ground Rules for Operation Lifeline Sudan; section 9 of the UN Secretary-General’s Bulletin; Para. 67 of the Agreement on the Protection and Provision of Humanitarian Assistance in the Sudan, para. 1 (para. 10) and Cairo Declaration, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 589. 444 Argentina, Draft Code of Military Justice, 1998, Article 292, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 466. 445 Columbia, Emblem Decree, 1998, Article 10, Ibid., p. 466. 446 Nicaragua, Military Penal Code, 1996, Article 57, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 467; Spain, Military Criminal Code, 1985, Article 77, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 468. 447 Canada, Law of Armed Conflict Manual, 1999, paras. 53 and 54, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 608. 448 Argentina, Law of War Manual, 1989, para. 4.11, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 589. 449 Poland, Penal Code, 1997, Article 123, Ibid. 450 Columbia, Emblem Decree, 1998, Article 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 466. 451 Lithuania, Criminal Code, 1961, Article 337, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 467. 452 Estonia, Penal Code, 2001, para. 102, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 579. 453 Romania, Penal Code, 1968, Article 358, Ibid.

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and Médecins sans Frontières . . . upon recognition that they are providing care to the sick and wounded.”454 Other military manuals prefer to use a more neutral term, similar to the definition of Article 70 of Protocol I: “relief personnel,”455 “personnel engaged in relief activities,”456 “personnel in relief actions,”457 “personnel involved in relief actions,”458 “personnel participating in relief actions,”459 or “personnel involved in relief operations.”460 Finally, the protection of “humanitarian organisations” is provided for in Estonia’s Penal Code,461 Ethiopia’s Penal Code,462 and Portugal’s Penal Code.463 The obligation to respect and protect humanitarian NGOs is also recalled in resolutions of international organisations, the large majority of which deal with non-international armed conflicts. The Security Council requested all parties to the conflict to respect and ensure the safety of “humanitarian organisations/agencies,” or condemned their attacks, in several resolutions.464 The 454 Canada, Code of Conduct, 2001, Rule 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 590. 455 France, Law of Armed Conflict Manual, 2001, p. 95, Ibid. 456 Netherlands, Military Manual, 1993, p. VIII-4, para. 3, Ibid. 457 Argentina, Law of War Manual, 1989, para. 4.11, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 589. 458 Sweden, IHL Manual, 1991, section 2.2.3, pp. 18–19, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 590. 459 Canada, Law of Armed Conflict Manual, 1999, paras. 53 and 54, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 608. 460 Australia, Defence Force Manual, 1994, para. 925, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 589–590. 461 Estonia, Penal Code, 2001, para. 102, Ibid. 462 Ethiopia, Penal Code, 1957, para. 293, Ibid. 463 Portugal, Penal Code, 1996, Article 241, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 609. 464 UN Security Council, Statement by the President, UN Doc. S/PRST/1997/39, 23 July 1997, p. 1; Statement by the President, UN Doc. S/PRST/1996/1, 5 January 1996, pp. 1–2; Statement by the President, UN Doc. S/PRST/1996/1, 5 January 1996, p. 1; Resolution 758, 8 June 1992, para. 7; Resolution 770, 13 August 1992, para. 6; Resolution 787, 16 November 1992, para. 18; Resolution 819, 16 April 1993, para. 10; Statement by the President, UN Doc. S/PRST/1994/1, 7 January 1994, p. 1; Statement by the President, UN Doc. S/PRST/1994/11, 14 March 1994, p. 2; Resolution 1265, 17 September 1999, para. 12; Resolution 746, 17 March 1992, para. 8; Resolution 751, 24 April 1992, para. 14; Statement by the President, UN Doc. S/PRST/1996/4, 24 January 1996, p. 1; Resolution 1296, 19 April 2000, para. 8; Statement by the President, UN Doc. S/PRST/1997/13, 12 March 1997, p. 1; Statement by the President,

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General Assembly also condemned the attacks on “humanitarian organisations” and urged all parties to the conflict to ensure their safety.465 The UN Commission on Human Rights made similar statements.466 Additionally, the Security Council467 and the General Assembly468 referred on several occasions to the humanitarian personnel, personnel providing humanitarian assistance or engaged in humanitarian relief (or activities),469

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UN Doc. S/PRST/1997/34, 19 June 1997, p. 2; Statement by the President, UN Doc. S/PRST/1997/34, 19 June 1997; Statement by the President, UN Doc. S/PRST/1998/22, 14 July 1998, p. 2; Statement by the President, UN Doc. S/PRST/1998/30, 29 September 1998; Statement by the President, UN Doc. S/PRST/1997/13, 12 March 1997, p. 1; Statement by the President, UN Doc. S/PRST/1997/39, 23 July 1997, p. 1; Statement by the President, UN Doc. S/PRST/1997/39, 23 July 1997, p. 1; Statement by the President, UN Doc. S/ PRST/1998/22, 14 July 1998, p. 2; Statement by the President, UN Doc. S/PRST/1998/24, 6 August 1998, p. 2. UN General Assembly, Resolution 49/196, 23 December 1994, para. 15; Resolution 49/206, 23 December 1994; Resolution 50/200, 22 December 1995; Resolution 50/193, 22 December 1995; Resolution 50/1 89, 22 December 1995, para. 9; Resolution 50/200, 22 December 1995, para. 5; Resolution 51/108, 12 December 1996, para. 9; Resolution 55/116, 4 December 2000, para. 2. UN Commission on Human Rights, Resolution 1991/78, 6 March 1991, para. 12; Resolution 1992/68, 4 March 1992, para. 22; Resolution 1994/84, 9 March 1994, para. 19; Resolution 1995/74, 8 March 1995, para. 13; Resolution 1994/60, 4 March 1994, preamble and para. 3; Resolution 1995/89, 8 March 1995, para. 17; Resolution 1995/91, 8 March 1995, para. 3; Resolution 1996/1, 27 March 1996, preamble; Resolution 1996/73, 23 April 1996, preamble; Resolution 1997/59, 15 April 1997, para. 4; Resolution 1998/70, 21 April 1998, para. 5; Resolution 2001/18, 20 April 2001, para. 2. UN Security Council, Statement by the President, UN Doc. S/PRST/1996/1, 5 January 1996, p. 1; Statement by the President, UN Doc. S/PRST/1997/5, 7 February 1997; Statement by the President, UN Doc. S/PRST/1997/8, 27 February 1997; Statement by the President, UN Doc. S/PRST/1998/9, 6 April 1998; Statement by the President, UN Doc. S/PRST/1998/26, 31 August 1998. UN General Assembly, Resolution 52/167, 16 December 1997, para. 2; Resolution 53/164, 9 December 1998, p. 3, para. 11; Resolution 54/192, 17 December 1999, preamble and para. 4. UN Security Council, Resolution 733, 29 January 1992, para. 8; Resolution 814, 26 March 1993, para. 9; Resolution 851, 15 July 1993, para. 20; Resolution 897, 4 February 1994, preamble; Resolution 923, 31 May 1994, preamble; Resolution 954, 4 November 1994, preamble; Resolution 985, 13 April 1995, para. 6; Resolution 1001, 30 June 1995, para. 13; Resolution 1014, 15 September 1995, para. 13; Resolution 998, 16 June 1995, para. 1; Resolution 1041, 29 January 1996, para. 6; Resolution 1059, 31 May 1996, para. 7;

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or the international personnel,470 the relief personnel,471 the nongovernmental humanitarian personnel,472 the personnel of NGOs,473 and the international humanitarian personnel.474 There was no definition of these personnel in any resolution. However, the Security Council stated that the “international humanitarian personnel” included “those proving humanitarian assistance,”475 and that the “international personnel” included the staff of NGOs.476 In 1996, the General Assembly called upon “all parties, movements and factions in Somalia to respect fully the safety and security of personnel of . . . non-governmental organizations.”477 Regional organisations also requested parties to the conflict to respect NGOs providing relief and assistance. In a declaration by the Presidency, the EU urged ECOMOG “to ensure that IHL is upheld and to ensure the security of those engaged in providing such relief.”478 In another declaration, the Resolution 1071, 30 August 1996, para. 10; Statement by the President, UN Doc. S/26661, 28 October 1993, p. 1. 470 UN Security Council, Resolution 946, 30 September 1994, preamble; Resolution 1040, 29 January 1996, preamble; Resolution 1088, 12 December 1996, para. 23; Resolution 1127, 28 August 1997, para. 14; Resolution 1173, 12 June 1998, para. 9; Statement by the President, UN Doc. S/PRST/1994/46, 25 August 1994, p. 2; Statement by the President, UN Doc. S/ PRST/1996/4, 24 January 1996; Statement by the President, UN Doc. S/PRST/1996/47, 20 December 1996; Statement by the President, UN Doc. S/PRST/1996/16, 9 April 1996, p. 1; Statement by the President, UN Doc. S/PRST/1996/40, 28 September 1996, p. 1; Statement by the President, UN Doc. S/PRST/1996/43, 22 October 1996, p. 2; Statement by the President, UN Doc. S/PRST/1997/6, 7 February 1997, p. 1; Statement by the President, UN Doc. S/PRST/1997/29, 27 May 1997; Statement by the President, UN Doc. S/PRST/1998/14, 22 May 1998, p. 1; Statement by the President, UN Doc. S/PRST/1998/27, 15 September 1998, p. 1. 471 UN Security Council, Resolution 952, 27 October 1994, para. 7. 472 UN Security Council, Resolution 1199, 23 September 1998, para. 10. This call was reiterated in a subsequent resolution: UN Security Council, Resolution 1203, 4 October 1998, para. 8. 473 UN Security Council, Statement by the President, UN Doc. S/PRST/1994/11, 14 March 1994, p. 1. 474 UN Security Council, Resolution 1193, 28 August 1998, para. 7; Resolution 1195, 15 September 1998, para. 9; Statement by the President, UN Doc. S/PRST/1996/44, 1 November 1996, p. 1. 475 UN Security Council, Resolution 1195, 15 September 1998, para. 9. 476 UN Security Council, Statement by the President, UN Doc. S/PRST/1994/46, 25 August 1994, p. 2. 477 UN General Assembly, Resolution 51/30 G, 13 December 1996, para. 8. 478 EU, Declaration on the situation in Sierra Leone by the Presidency on behalf of the EU, 20 February 1998, para. 2, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 602.

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EU called upon all parties to the conflict in Sudan “to respect and guarantee the security of all personnel of aid organisations and relief flights and their crews.”479 Several resolutions of the OAU Council of Ministers urged member States and warring parties to ensure the safety of relief personnel.480 In particular, in a resolution adopted in 1994, the Council of Ministers of the OAU urged all member States and warring parties “to respect the Red Cross, Red Crescent and other humanitarian organisations’ emblems.”481 The UN Commission of Enquiry on Darfur found as customary in internal armed conflicts the prohibition on intentionally directing attacks against personal, installations, material, units or vehicles involved in a humanitarian assistance, as long as they are entitled to the protection given to civilians.482 Finally, this rule was reiterated at the World Conference on Human Rights in 1993 and at the 26th and 27th International Conferences of the Red Cross and Red Crescent.483 Moreover, the final Declaration adopted by the International Conference for the Protection of War Victims in 1993 urged “all States to make every effort to . . . take the appropriate measures to enhance respect for the safety, security and integrity of humanitarian organizations, in conformity with applicable rules of international humanitarian law.”484 479 EU, Declaration on Sudan by the Presidency on behalf of the EU, 14 August 1998, para. 11, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 602. 480 OAU, Council of Ministers, Resolution 1526 (LX), 6–11 June 1994, para. 5, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 602; OAU, Council of Ministers, Resolution 1662 (LXIV), 1–5 July 1996, para. 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 602; OAU, Council of Ministers, Resolution 1662 (LXIV), 1–5 July 1996, para. 10, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 624; OAU, Council of Ministers, Resolution 1649 (LXIV), 1–5 July 1996, para. 4, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 603. 481 OAU, Council of Ministers, Resolution 1526 (LX), 11 June 1994, para. 4, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 582. 482 Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral, Geneva, 25 January 2005, available at www.ohchr.org/ and cited in Marco Sassòli and Antoine A. Bouvier (eds.), How Does Law Protect in War?, Vol. II, second edition, ICRC, Geneva, 2006, pp. 1476–1477. 483 Vienna Declaration and Programme of Action, World Conference on Human Rights; Resolution IV of the 26th International Conference of the Red Cross and Red Crescent; Plan of Action for the years 2000–2003, 27th International Conferences of the Red Cross and Red Crescent. 484 International Conference for the Protection of War Victims, Geneva, 30 August-1 September 1993, Final Declaration, paragraph II(8), in International Legal Materials, Vol. 33, 1994, p. 301.

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In addition to the prohibition against attacks on humanitarian personnel, harassment, arbitrary detention, mistreatment, abduction, and physical or psychological violence are all prohibited by various resolutions of international and regional organisations, including the Security Council,485 the General Assembly,486 the Commission for Human Rights487 and regional bodies.488 Such prohibitions have been also prohibited in the statements of individual States.489 In addition, the UN Commission of Enquiry on Darfur found that the prohibition on intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilian or civilian objects under the international law of armed conflicts, is a customary rule in internal armed conflicts.490

485 UN Security Council, Resolution 897, 4 February 1994, para. 8; Resolution 923, 31 May 1994, para. 5; Resolution 918, 17 May 1994, para. 11; Resolution 925, 8 June 1994, para. 11; Resolution 940, 31 July 1994, para. 15; Resolution 946, 30 September 1994, preamble; Resolution 950, 21 October 1994, para. 11; Resolution 954, 4 November 1994, para. 7; Resolution 1071, 30 August 1996, para. 8. 486 UN General Assembly, Resolution 51/30 B, 5 December 1996, para. 4; Resolution 53/87, 7 December 1998, preamble; Resolution 54/192, 17 December 1999, preamble; Resolution 55/116, 4 December 2000, para. 3. 487 UN Commission on Human Rights, Resolution 1994/79, 9 March 1994, para. 11; Resolution 1995/77, 8 March 1995, para. 18; Resolution 1995/89, 8 March 1995, para. 17; Resolution 1995/91, 8 March 1995, para. 3; Resolution 1996/1, 27 March 1996, preamble; Resolution 1996/73, 23 April 1996, preamble; Resolution 1997/59, 15 April 1997, para. 4; Resolution 1997/77, 18 April 1997, para. 9; Resolution 2001/18, 20 April 2001, para. 2. 488 Council of Europe, Parliamentary Assembly, Resolution 921, 6 July 1989, para. 8; OUA, Council of Ministers, Resolutions 1526 (LX), 6–11 June 1994, para. 5; Resolution 1649 (LXIV), 1–5 July 1996, para. 4; Resolution 1662 (LXIV), 1–5 July 1996, para. 10 and OSCE, Chairman in Office, Press release No. 86/96, 17 December 1996, paras. 1–2, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 602–603. 489 See the statements of Germany, Philippines, Russia and United States, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 610–613. 490 Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral, Geneva, 25 January 2005, available at www.ohchr.org/ and cited in Marco Sassòli and Antoine A. Bouvier (eds.), How Does Law Protect in War?, Vol. II, op. cit., pp. 1476–1477.

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While the Additional Protocols provide that the protection of humanitarian relief personnel applies only to authorised humanitarian personnel,491 the overwhelming majority of practise does not specify this condition. 4.1.5

Civilians in General (Including NGOs Not Providing Humanitarian Assistance) It is a customary rule of international humanitarian law that the parties to the conflict must at all times distinguish between civilians and combatants and that attacks may only be directed against combatants.492 The principle of distinction between civilians and combatants was first set forth in the preamble of the St. Petersburg Declaration. It is now codified in Protocol I493 and in other treaties as well.494 In addition, under the Statute of the ICC, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime.495 Article 13 of Protocol II prohibits making civilians the object of attack.496 In addition, this rule is included in other instruments pertaining to non-international armed conflicts.497 However, the prohibition is not absolute: civilians can be

491 The notion of authorisation refers to the consent received from the party to the conflict concerned to work in areas under its control: see Article 71 of Protocol I and Article 18 of Protocol II. 492 The definition of civilians as persons who are not members of the armed forces is set forth in Article 50 of Additional Protocol I. In its judgement in the Blaskic case in 2000, the ICTY defined civilians as ‘persons who are not, or no longer, members of the armed forces’: ICTY, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Trial Judgement, 3 March 2000, para. 180. 493 Articles 48, 51 and 52 of Protocol I. 494 Article 3 of the Protocol II to the Convention on Certain Conventional Weapons (CCW); Article 3 of the Amended Protocol II to the CCW; Article 2 of the Protocol III to the CCW. 495 Article 8(2) of the ICC Statute. 496 Article 13 of Protocol II. 497 Para. 6 of the Memorandum of Understanding on the Application of IHL between Croatia and the SFRY; Para. 2.5 of the Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina; Paras. 39 and 41 of the San Remo Manual; Section 5.1 of the UN Secretary-General’s Bulletin; Article 3(a) of the Cairo Declaration on Human Rights in Islam; Hague Statement on Respect for Humanitarian Principles and Section 6(I)(e) of the UNTAET Regulation 2000/15. See the legislation of numerous countries, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 4.

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victims of collateral damage. An attack would only be illegal if civilian losses are excessive, according to the principle of proportionality.498 Numerous military manuals stipulate that a distinction must be made between civilians and combatants and that it is prohibited to direct attacks against civilians.499 In addition, there are numerous examples of national legislation that make it a criminal offence to direct attacks against civilians.500 In the 1969 Kassem case, Israel’s Military Court at Ramallah recognised the immunity of civilians from direct attack as one of the basic rules of international humanitarian law.501 In its advisory opinion in the Nuclear Weapons case, the Court stated that the principle of distinction was one of the intransgressible principles of international customary law.502 The jurisprudence of the ICJ, of the ICTY, and of the Inter-American Commission on Human Rights provide further evidence that the obligation to make a distinction between civilians and combatants is customary in both international and non-international armed conflicts.503 The ICTY stated on several occasions that the prohibition against attacks on civilians is part of customary international law, and therefore applicable in internal armed conflicts.504

498 Michael Bothe and Karin Janssen, “Problèmes de protection des blessés et malades,” Revue internationale de la croix-rouge, No. 760, juillet–août 1986, p. 197. 499 See the military manuals of Argentina, Benin, Cameroon, Canada, Colombia, Germany, Netherlands, New Zealand, Philippines, Togo and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 24–29. 500 See the legislation of Armenia, Australia, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Canada, Colombia, Democratic Republic of the Congo, Congo, Croatia, Estonia, Georgia, Germany, Ireland, Lithuania, Netherlands, New Zealand, Niger, Norway, Slovenia, Spain, Sweden, Tajikistan, United Kingdom, Vietnam, Yemen and Yugoslavia reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 29–34. 501 Israel, Military Court at Ramallah, Kassem case, Judgement, 13 April 1969, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 34. 502 ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, paras. 78–79. 503 ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, paras. 78–79; ICTY, Tadic case, lnterlocutory Appeal, 2 October 1995, paras. 100–127; Martic case, Review of the Indictment, 8 March 1996, para. 10; Kupreskic case, Judgement, 14 January 2000, para. 521; Inter-American Commission on Human Rights, Case 11.137 (Argentina), Report, 18 November 1997, para. 177. 504 Prosecutor v. Pavle Stugar, IT-01-42-AR72, Decision on Interlocutory Appeal of 22 November 2002, para. 9; Prosecutor v. Pavle Stugar, IT-01-42-T, Trial Chamber Judgement of 31 January 2005, paras. 220–222.

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Alleged violations of this rule have been condemned by the UN Security Council,505 the 20th506 and the 27th507 International Conferences of the Red Cross and Red Crescent, and the UN General Assembly.508 4.1.6

Objects (Including Relief) of NGOs Used for Humanitarian Relief Operations The prohibition to attack relief workers has a corollary to respect the objects used for humanitarian relief operations. Article 53 of the Fourth Geneva Convention provides for the respect and protection of real or personal property belonging to private persons or to social or cooperative organisations. All States guarantee the protection of relief supplies intended for occupied territory.509 Intentionally directing attacks against installations, material, or vehicles involved in a humanitarian assistance mission is considered a war crime.510 While Article 18(2) of Protocol II requires relief actions for the civilian population in need to be organised, the Protocol does not contain a specific provision on the protection of objects used in humanitarian relief operations.511 This rule is, however, necessary for relief actions to succeed. In addition, this rule is contained in other instruments that also pertain to non-international armed conflicts.512 505 UN Security Council, Resolution 1296, 19 April 2000, para. 2; Resolution 564, 31 May 1985, para. 1; Resolution 771, 13 August 1992, preamble; Resolution 794, 3 December 1992, preamble; Resolution 819, 16 April 1993, preamble; Resolution 853, 29 July 1993, para. 2; Resolution 904, 18 March 1994, para. 3; Resolution 912, 21 April 1994, para. 4; Resolution 913, 22 April 1994, preamble; Resolution 918, 17 May 1994, preamble; Resolution 935, 1 July 1994, preamble; Resolution 950, 21 October 1994, para. 7; Resolution 978, 27 February 1995, para. 4; Resolution 993, 12 May 1995, preamble; Resolution 998, 16 June 1995, preamble; Resolution 1001, 30 June 1995, preamble; Resolution 1019, 9 November 1995, para. 1; Resolution 1041, 29 January 1996, para. 4; Resolution 1049, 5 March 1996, para. 2; Resolution 1072, 30 August 1996, para. 5; Resolution 1052, 18 April 1996, para. 4; Resolution 1073, 28 September 1996, preamble; Resolution 1076, 22 October 1996, preamble; Resolution 1089, 13 December 1996, para. 4; Resolution 1161, 9 April 1998, preamble; Resolution 1173, 12 June 1998, para. 5; Resolution 1180, 29 June 1998, para. 5. 506 Resolution XXVIII of the 20th International Conference of the Red Cross. 507 Plan of Action for the years 2000–2003, 27th International Conference of the Red Cross and Red Crescent. 508 UN General Assembly, Resolution 2444 (XXIII), 19 December 1968, para. 1. 509 Article 59 of the Fourth Geneva Convention; Article 70 of Protocol I. 510 Article 8 the Statute of the ICC; Article 4 of the Special Court for Sierra Leone. 511 Article 18(2) of Additional Protocol II. 512 Bahir Dar Agreement, para. 2 (in this paragraph, the various Somali organisations attending the meting convened by the Standing Committee on Somalia pledged to guarantee

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The protection of these objects is supported by States in their legislation513 and military manuals.514 Moreover, this rule is recalled in a number of international organisations’ resolutions, including the Security Council,515 the General Assembly,516 and the Human Rights Commission.517 State practise518 and United Nations resolutions519 also indicate that destruction and misappropriation of humanitarian relief objects are prohibited.

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516 517 518 519

the security of relief objects); UN Secretary-General’s Bulletin, section 9.9 (“the United Nations force shall facilitate the work of relief operations which are humanitarian and impartial in character and conducted without any adverse distinction, and shall respect . . . vehicles and premises involved in such operations”) and UNTAET Regulation 2000/15, section 6(1)(b)(iii) and (e)(iii) (“intentionally directing attacks against . . . installations, material, units or vehicles involved in a humanitarian assistance . . . mission . . . as long as they are entitled to the protection given to . . . civilian objects under the international law of armed conflicts” constitutes a war crime), reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 629. See for examples the legislation of Australia, Bosnia and Herzegovina, Canada, China, Colombia, Congo, Croatia, Ethiopia, Germany, Ireland, Netherlands, New Zealand, Norway, Portugal, Slovenia, United Kingdom and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 629–632. See the statements of Bosnia and Herzegovina, Republika Srpska, Germany and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 632–633. UN Security Council, Resolution 918, 17 May 1994, para. 11; Resolution 925, 8 June 1994, para. 11; Resolution 950, 21 October 1994, para. 11; Resolution 1075, 11 October 1996, para. 18; Resolution 1087, 11 December 1996, para. 16; Resolution 1059, 31 May 1996, para. 6; Resolution 1071, 30 August 1996, para. 8; Resolution 1083, 27 November 1996, para. 7; Resolution 1265, 17 September 1999, para. 2. UN General Assembly, Resolution 51/30 B, 5 December 1996, para. 4; Resolution 54/192, 17 December 1999, preamble; Resolution 55/116, 4 December 2000, para. 3. UN Commission on Human Rights, Resolution 1995/77, 8 March 1995, para. 18. See the statements of Australia, Ethiopia and Netherlands reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 629–635. UN Security Council, Resolution 950, 21 October 1994, para. 11; Resolution 1059, 31 May 1996, para. 6; Resolution 1071, 30 August 1996, para. 8; Resolution 1083, 27 November 1996, para. 7. See also UN General Assembly, Resolution 51/30 B, 5 December 1996, para. 4; Resolution 54/192, 17 December 1999, preamble; Resolution 55/116, 4 December 2000, para. 3.

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4.1.7 Exception: Not to Commit Acts Harmful to the Enemy Humanitarian organisations and civilians are protected only to the extent that they do not commit acts harmful to the enemy and do not participate in hostilities. The First Geneva Convention and Protocol I provide for the loss of protection of medical units and transports if they are used to commit, “outside their humanitarian function, acts harmful to the enemy.”520 Protocol II contains a similar disposition.521 The protection granted to civilian hospitals ceases for the same reason.522 However, protection may cease only after due warning has been given, and given a reasonable time limit. Moreover, the hospital can include among its patients combatants whose health is impaired, and the hospital can retain their weapons for some time before handing them over to the competent service.523 Examples of harmful acts may include sheltering in a hospital combatants or healthy deserters, using it as a depository for arms and munitions, or establishing an observation post in it.524 Military manuals and national legislation of States similarly emphasise that medical personnel who engage in hostile acts lose the specific protection to which they are entitled, as they should be exclusively assigned to medical duties to be granted protection.525 The loss of protection of medical personnel in case of engagement in acts harmful to the enemy applies mutatis mutandis to religious personnel, since religious personnel are, in practise, part of the medical personnel.526 Similarly, Article 65 of Protocol I states that the protection afforded to civilian civil defence organisations shall not cease until they commit acts harmful to the enemy. It adds also that “protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time limit, and after such warning has remained unheeded.” Harmful acts should be 520 521 522 523

Article 21 of the First Geneva Convention; Article 13 of Protocol I. Article 11 of Protocol II. Article 18 of the Fourth Geneva Convention. Article 19 of the First Geneva Convention; see also Paul Des Gouttes, “Application de la Convention de Genève de 1929: le personnel sanitaire perd-il son droit à l’immunité s’il est armé?,” Revue internationale de la croix-rouge, mai 1943, pp. 424–428. 524 Oscar Uhler, “Civilian Hospitals and their Personnel,” op. cit., p. 22; Lucie Odier, “La protection des hôpitaux civils et de leur personnel en temps de guerre,” op. cit., p. 544. 525 See the military manuals of Australia, Israel, Netherlands, Spain and United States and the legislation of Italy, Nicaragua and Spain, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 481–483 and pp. 467–468. 526 Jean-Luc Hiebel, Assistance spirituelle et conflits armés, Henry Dunant Institute, Geneva, 1980, p. 199.

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committed outside the “proper tasks” of civil defence. The Article gives examples of what shall not be considered as acts harmful to the enemy.527 Finally, the rule whereby civilians lose their protection against attack when they take a direct part in hostilities is contained in Article 51 of Protocol I and Article 13 of Protocol II. This rule is also set forth in other instruments relating to international armed conflict.528 There is a continuing debate concerning the interpretation of the phrase “unless and such time as they take a direct part in hostilities.”529 The ICRC commentaries on the Additional Protocols define the words to mean “a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.” In addition, it encompasses acts that are “intended by their nature or their purpose to target specifically the personnel and the “material” of the armed forces of the adverse party.”530 The rule whereby civilians lose their protection against attack when they take a direct part in hostilities is contained in numerous military manuals.531 At the 1974–1977 Diplomatic Conference, the United Kingdom stated that 527 Examples include that civil defence tasks are carried out under the direction or control of military authorities; that civilian civil defence personnel co-operate with military personnel in the performance of civil defence tasks, or that some military personnel are attached to civilian civil defence organisations; that the performance of civil defence tasks may incidentally benefit military victims; that civilian civil defence personnel bear light individual weapons for maintaining order of for self-defence; the formation of civilian civil defence organisations along military lines, and compulsory service in them. 528 See para. 6 of the Memorandum of Understanding on the Application of IHL between Croatia and the SFRY; para. 2.5 of the Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina; Section 5.2 of the UN SecretaryGeneral’s Bulletin. 529 Taking a direct part in hostilities is not the only wording in IHL that conveys such participation. Other terms include “take no active part” in hostilities (Common Article 3 of the 1949 Geneva Conventions), “a person who takes part in hostilities” (Article 45 of Protocol I) “abstains from any hostile act” (Article 41 of Protocol I) “acts harmful to the enemy” (Articles 45, 65 and 67 of Protocol I; Article 21 of the First Geneva Convention; Article 34 of the Second Geneva Convention; Article 19 of the Fourth Geneva Convention) “any act of hostility” (Article 8 of Protocol I) and “persons who have ceased to take part in hostilities” (Article 4 of Protocol II). 530 Commentary Article 43 of Protocol I, para. 1679. 531 See the military manuals of Australia, Benin, Canada, Colombia, Croatia, Dominican Republic, Ecuador, France, Germany, India, Indonesia, Italy, Kenya, Madagascar, Netherlands, New Zealand, Nigeria, South Africa, Spain, Sweden, Togo, United Kingdom, United States and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 108–110.

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the exception to the civilian immunity from attack contained in this Article was a “valuable reaffirmation” of an existing rule of customary international law.532 In the case concerning the events at La Tablada in Argentina, the InterAmerican Commission on Human Rights held that civilians who directly take part in fighting, whether singly or as members of a group, thereby become legitimate military targets, but only for such time as they actively participate in combat.533 The Commission has stated that the term “direct participation in hostilities” means acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and material.”534 To conclude, the principle of protection and respect of NGOs has been recognised widely by State practise and opinio juris, as demonstrated by State statements, national legislation, military manuals, court decisions, and resolutions from international organisations. Therefore, this rule should be considered as a customary law norm in both international and non-international armed conflict. In fact, due to the exacting and absolute character of the rule, its tendency toward universal application and its reach for the individual level,535 this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect this principle. 4.2 Content of the Obligation of Protection and Respect The content of the obligation to respect and protect NGOs in armed conflict has not been clearly defined by the Conventions and Protocols. It is a general protection that is afforded to all non-combatants and not only to NGOs. It can be considered that it includes, but is not limited to, several rules of customary law protecting civilians in general, and other personnel such as religious and medical personnel and civil defence. Such rules prohibit attacks, murder and violence, torture and cruel or inhuman treatment, mutilation, sexual violence, taking of hostages, and arbitrary deprivation of liberty. The obligation of protection and respect for the medical personnel also includes the fact that NGO personnel should be able to fulfil their duties. 532 United Kingdom, Statement at the CCDH, Official Records, Vol. VI, CCDH/SR.41, 26 May 1977, p. 164, para. 119. 533 Inter-American Commission on Human Rights, Case 11.137 (Argentina), Report, 18 November 1997, paras. 177–178 and 189, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 113. 534 Inter-American Commission on Human Rights, Third report on human rights in Colombia, Doc. OEA/Ser. L/V/II.102 Doc 9 rev. 1, 26 February 1999, Chapter IV, paras. 53 and 56, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 114. 535 Georges Abi-Saab, “The Specificities of Humanitarian Law,” op. cit., p. 280.

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4.2.1 Attacks, Murder and Violence is Prohibited Pursuant to Article 8(2)b.iii and e.iii of the ICC Statute, “Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict” constitutes a war crime in both international and non-international armed conflicts. A similar provision can be found in Article 4 of the 2002 Statute of the Special Court for Sierra Leone. The 2005 Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel expands the scope of the Convention to all other operations established by a competent organ of the United Nations in accordance with the Charter and conducted under United Nations authority and control for the purpose of delivering humanitarian, political or development assistance in peace building, or delivering emergency humanitarian assistance.536 It therefore criminalises attacks against humanitarian organisations involved in such operations, i.e. NGOs working with the United Nations as partners.537 In addition, the prohibition of murder or violence to the lives of civilians is recognised in the Lieber Code,538 the Geneva Conventions539 (in particular common Article 3) and the Additional Protocols.540 Moreover, murder of civilians is considered a war crime in the Charter of the International Military Tribunal at Nuremberg,541 the Statute of the ICC, and of the ICTY, ICTR, and the Special Court for Sierra Leone.542 This obligation is also recognised in the practise of States and case-law. The prohibition on killing civilians is set forth in numerous military manuals,543 536 Article II of the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel. 537 The Convention provides a mechanism for prosecuting attacks on UN and associated personnel as crimes against international law. 538 Articles 23 and 44 of the Lieber Code. 539 All four Geneva Conventions list “wilful killing” of protected persons as a grave breach: Article 50 of the First Geneva Convention; Article 51 of the Second Geneva Convention; Article 130 of the Third Geneva Convention; Article 147 of the Fourth Geneva Convention. 540 Article 75 of Additional Protocol I; Article 4(2)(a) of Additional Protocol II. 541 Article 6(b) of the IMT Charter (Nuremberg). 542 Article 8 of the ICC Statute; Article 2(a) of the ICTY Statute; Article 4(a) of the ICTR Statute; Article 3(a) of the Statute of the Special Court for Sierra Leone. 543 See the military manuals of Argentina, Australia, Belgium, Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Ecuador, El Salvador,

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and the legislation of a large number of States.544 Some manuals specifically mention humanitarian personnel, like Canada’s LOAC Manual, which provides that: “Humanitarian aid societies, such as the Red Cross or Red Crescent Societies, who on their own initiative, collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas, shall not be made the object of attack. Personnel participating in relief actions shall not be made the object of attack.”545 This prohibition has also been stated in national legislation,546 one example being Estonia’s Penal Code, which states that “a person who kills, tortures, causes health damage . . . to a representative of a humanitarian organisation performing his/her duties in a war zone” commits a war crime.547 This principle has been upheld extensively in national and international case-law.548 In particular, the ICTY stated that the prohibition of attacks on

France, Germany, Hungary, Israel, Italy, Kenya, South Korea, Madagascar, Mali, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Peru, Philippines, Romania, Russia, Senegal, South Africa, Spain, Switzerland, Togo, Uganda, United Kingdom and United States, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2067–2073. 544 See the legislation of numerous countries, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2074–2083. 545 Canada, LOAC Manual, 1999, paras. 53–54, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 608. 546 See the legislation of Australia, Azerbaijan, Burundi, Canada, Congo, Ethiopia, Germany, the Netherlands, New Zealand, Philippines, Portugal, Trinidad and Tobago and United Kingdom, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 608–609. 547 Estonia, Penal Code, 2001, para. 102, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 608. 548 See the case law of Australia, Belgium, Chile, China, Colombia, Israel, Netherlands, Norway, United Kingdom, United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2084–2085; ICJ, Nicaragua case (Merits), Judgement , 27 June 1986, para. 218; ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, para. 25; ICTR, Ntakirutimana and Others case, Amended Indictment, 20 October 2000, para. 5; ICTY, Tadic case, Interlocutory Appeal, 2 October 1995, para. 106, Mrksie case, Initial Indictment, 26 October 1995, para. 26; Erde­movic case, Sentencing Judgement, 29 November 1996, Part IV; Delalic case, Judgement, 16 November 1998, paras. 422–423; Jelisic case, Judgement, 14 December 1999, para. 41; Blaskic case, Judgement, 3 March 2000, para. 182.

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civilians is part of customary international law, and therefore applicable in internal armed conflicts.549 Alleged violations of this rule have consistently been condemned by the UN Security Council, General Assembly, and the Commission on Human Rights. In several resolutions, the Security Council condemned “attacks,”550 “violence,”551 “intimidation,”552 and “harassment”553 against persons engaged in humanitarian efforts. The General Assembly also condemned strongly the killings of humanitarian workers.554 Murder of civilians is also prohibited under international human rights law.555 This prohibition is non-derogable and therefore applicable at all times.556 Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their statements, 549 Prosecutor v. Pavle Stugar, IT-01-42-AR72, Decision on Interlocutory Appeal of 22 November 2002, para. 9; Prosecutor v. Pavle Stugar, IT-01-42-T, Trial Chamber Judge­ ment of 31 January 2005, paras. 220–222. 550 UN Security Council, Resolution 897, 4 February 1994, preamble and para. 8; Resolution 864, 15 September 1993, para. 13; Resolution 913, 22 April 1994, preamble; Resolution 946, 30 September 1994, preamble; Resolution 1071, 30 August 1996, para. 8; Resolution 1193, 28 August 1998, para. 6; Resolution 1265, 17 September 199, para. 9. 551 UN Security Council, Resolution 897, 4 February 1994, preamble and para. 8; Resolution 923, 31 May 1994, preamble and para. 5; Resolution 918, 17 May 1994, para. 11; Resolution 940, 31 July 1994, para. 15; Resolution 950, 21 October 1994, paras. 7–8; Resolution 954, 4 November 1994, para. 7; Resolution 1049, 5 March 1996, para. 2. 552 UN Security Council, Resolution 897, 4 February 1994, preamble and para. 8; Resolution 923, 31 May 1994, preamble and para. 5; Resolution 918, 17 May 1994, para. 11; Resolution 940, 31 July 1994, para. 15; Resolution 954, 4 November 1994, para. 7; Resolution 1071, 30 August 1996, para. 8. 553 UN Security Council, Resolution 946, 30 September 1994, preamble. 554 UN General Assembly, Resolution 49/196, 23 December 1994, para. 15; Resolution 49/198, 23 December 1994, preamble; Resolution 50/197, 22 December 1995, para. 9; Resolution 49/206, 23 December 1994, para. 3; Resolution 50/2000, 22 December 1995, para. 4; Resolution 51/112, 12 December 1996, preamble; Resolution 51/137, 13 December 1996, preamble; Resolution 52/167, 16 December 1997, para. 2; Resolution 53/164, 9 December 1998, p. 3, para. 11; Resolution 54/192, 17 December 199, paras. 6–7. 555 Article 6(1) of the International Covenant on Civil and Political Rights; Article 4 of the American Convention on Human Rights; Article 4 of the African Charter on Human and Peoples’ Rights; Article 2 of The European Convention on Human Rights. 556 Article 4(2) of the International Covenant on Civil and Political Rights; Article 27(2) of the American Convention on Human Rights; Article 15(2) of the European Convention on Human Rights.

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legislation, military manuals, and United Nations resolutions. Due to the absolute character of the rule and its tendency toward universal application, this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect it. 4.2.2 Torture, Cruel or Inhuman Treatment are Prohibited The prohibition of torture, and outrages upon personal dignity, in particular humiliating and degrading treatment, is recognised in the Lieber Code,557 Common Article 3, the four Geneva Conventions,558 and Additional Protocols I and II.559 It is also considered as a war crime under the Charter of the International Military Tribunal at Nuremberg,560 the Statutes of the ICC, of the ICTR, and of the Special Court for Sierra Leone.561 In addition, the prohibition against torture and cruel, inhuman or degrading treatment or punishment is to be found in general human rights treaties,562 as well as in specific treaties.563 It should be however noted that the development of a definition of torture at customary international criminal law differs from that in the United Nations Torture Convention and that generally applied in human rights law.564

557 Article 16 of the Lieber Code. 558 Article 12 of the First Geneva Convention; Article 12 of the Second Geneva Convention; Articles 17, 87 and 89 of the Third Geneva Convention; Article 32 of the Fourth Geneva Convention. In particular, “torture or inhuman treatment” and “wilfully causing great suffering or serious injury to body or health” constitute grave breaches of the Geneva Con­ ventions: see Article 50 of the First Geneva Convention; Article 51 of the Second Geneva Convention; Article 130 of the Third Geneva Convention; Article 147 of the Fourth Geneva Convention; Article 8(2) of the ICC Statute. 559 Article 75(2) of Additional Protocol I; Article 4(2) of Additional Protocol II. 560 Article 6(b) of the IMT Charter. 561 Article 8(2)(c) of the ICC Statute; Article 4 of the ICTR Statute; Article 3 of the Statute of the Special Court for Sierra Leone. 562 Article 7 of the International Covenant on Civil and Political Rights; Article 3 of the European Convention on Human Rights; Article 5(2) of the American Convention on Human Rights; Article 5 of the African Charter on Human and Peoples’ Rights; Article 37(a) of the Convention on the Rights of the Child. 563 Convention against Torture, Inter-American Convention to Prevent and Punish Torture and European Convention for the Prevention of Torture. 564 Jill Marshall, “Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals,” Non-State Actors and International Law, Vol. 5, 2005, pp. 171–182.

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This prohibition of torture is contained in numerous military manuals,565 and the legislation of a large number of States.566 It has been upheld in national,567 as well as in international case-law.568 Allegations of torture, cruel or inhuman treatment have invariably been condemned by the international and regional organisations, including the Security Council,569 the General Assembly,570 and Human Rights Commission.571 It has also been condemned by International Conferences of the Red Cross and Red Crescent.572

565 See the military manuals of Argentina, Australia, Belgium, Benin, Bosnia and Herzegovina Burkina Faso, Canada, China, Colombia, Congo, Croatia, Dominican Republic, Ecuador, El Salvador, France, Germany, Hungary, India, Indonesia, Israel, Italy, Kenya, Madagascar, Mali, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Peru, Philippines, Romania, Russia, Senegal, South Africa, Spain, Sweden, Switzerland, Togo, Uganda, United Kingdom and United States, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2112–2121. 566 See the legislation of numerous countries, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2121–2134. 567 See the case law of Australia, Bosnia and Herzegovina, Canada, Chile, China, Colom­ bia, Israel, Netherlands, Norway, United Kingdom, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2134–2136. 568 ICJ, Nicaragua case (Merits), Judgement, 27 June 1986, para. 218; ICTY, Tadic case, Second Amended Indictment, 14 December 1995, paras. 6, 11–12; Delalic case, Judgement, 16 November 1998, para. 454; Furundzija case, Judgement, 10 December 1998, paras. 137–139; Jelisic case, Judgement, 14 December 1999, para. 138; Blaskic case, Judgement, 3 March 2000, Part IV; Kunarac case, Judgement, 22 February 2001, paras. 466, 883–888 and Kordic and Cerkez case, Judgement, 26 February 2001, Part V. 569 UN Security Council, Resolution 674, 29 October 1990, para. 5; Resolution 770, 13 August 1992, para. 3; Resolution 771, 13 August 1992, para. 3; Resolution 1072, 30 August 1996, preamble. 570 UN General Assembly, Resolution 2547 (XXIV), 11 December 1969, paras. 2–3; Resolution 3103 (XXVIII), 12 November 1974, para. 4; Resolution 3318 (XXIX), 14 December 1974, paras. 4–5; Resolution 34/93 H, 12 December 1979, paras. 1 and 4; Resolution 41/35, 10 November 1986, paras. 6–9; Resolution 50/193, 22 December 1995, pp. 4–5; Resolution 53/164, 9 December 1998, para. 8. 571 UN Commission on Human Rights, Resolution 1989/67, 8 March 1989, para. 11; Resolution 1990/53, 6 March 1990, para. 5; Resolution 1991/67, 6 March 1991, para. 5; Resolution 1991/78, 6 March 1991, para. 6; Resolution 1992/60, 3 March 1992, para. 3; Resolution 1992/68, 4 March 1992, para. 6; Resolution 1994/72, 9 March 1994, para. 5; Resolution 1996/71, 23 April 1996, para. 1; Resolution 1996/73, 23 April 1996, para. 15. 572 Resolution XI of the 21st International Conference of the Red Cross; Resolution XIV of the 23rd International Conference of the Red Cross; Resolution XIV of the 24th International Conference of the Red Cross; Resolution X of the 25th International Conference of the

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Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their statements, military manuals, and United Nations resolutions. Due to the absolute character of the rule and its tendency toward universal application, this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect it. 4.2.3 Mutilation is Prohibited The prohibition of mutilation of civilians is recognised in the Lieber Code,573 Common Article 3, the Third and Fourth Geneva Conventions,574 and Additional Protocols I and 11.575 Mutilation constitutes a war crime under the Statute of the ICC,576 of the ICTR, and of the Special Court for Sierra Leone.577 The Conventions and Protocol I, as well as the ICC and ICTY Statutes, also prohibit biological or medical experiments on protected persons.578 Numerous military manuals579 and national legislation580 specify the prohibition of physical mutilation and medical or scientific experiments. Most international instruments relating to war crimes refer to this prohibition.581

573 574 575 576 577 578

579

580 581

Red Cross, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2143. Article 56 of the Lieber Code. Article 13 of the Third Geneva Convention; Article 32 of the Fourth Geneva Convention. Article 75(2) of Additional Protocol I; Article 4 of Additional Protocol II. Article 8(2) of the ICC Statute. Article 4(a) of the ICTR Statute; Article 3 of the Statute of the Special Court for Sierra Leone. Article 12 of the First Geneva Convention; Article 12 of the Second Geneva Convention; Article 13 of the Third Geneva Convention; Article 32 of the Fourth Geneva Convention; Article 11(2) of Additional Protocol I; Article 8 of the ICC Statute; Article 2(b) of the ICTY Statute. See the military manuals of Argentina, Australia, Belgium, Bosnia and Herzegovina, Burkina Faso, Canada, Ecuador, France, Germany, Israel, Italy, Morocco, Netherlands, New Zealand, Nigeria, Russia, Senegal, South Africa, Spain, Sweden, Switzerland, United Kingdom and United States, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2171–2175. See the legislation of numerous countries, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2176–2185. Article 50 of the First Geneva Convention; Article 51 of the Second Geneva Convention; Article 130 of the Third Geneva Convention; Article 147 of the Fourth Geneva Conven­tion; Articles 11 and 85 of Additional Protocol I; Article 8(2) of the ICC Statute; Article 3 of the Statute of the Special Court for Sierra Leone.

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Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflict. States have widely endorsed this principle, as demonstrated in their statements and legislation. 4.2.4 Rape and Other Forms of Sexual Violence are Prohibited The prohibition of rape and other forms of sexual violence is recognised in the Lieber Code,582 common Article 3, the Third and Fourth Geneva Convention,583 and in the Additional Protocols.584 Rape, enforced prostitution, and any form of indecent assault are war crimes under the Statutes of the ICTR and of the Special Court for Sierra Leone,585 and of the ICC.586 Furthermore, rape and sexual violence constitute a crime against humanity under the Statutes of the ICC, the ICTR, and ICTY.587 Numerous military manuals588 and national legislation589 state that indecent assault is prohibited and even constitute war crimes. In particular, the United Kingdom UN Personnel Act specifically provides that rape against a UN worker is an offence.590

582 583 584 585 586 587 588

589

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Article 44 of the Lieber Code. Article 14 of the Third Geneva Convention; Article 27 of the Fourth Geneva Convention. Articles 75(2) and 76–77 of Additional Protocol I; Article 4(2) of Additional Protocol II. Article 4(e) of the ICTR Statute; Article 3(e) of the Statute of the Special Court for Sierra Leone. Article 8(2) of the ICC Statute. Article 7 of the ICC Statute; Article 5(g) of the ICTY Statute; Article 3(g) of the ICTR Statute. See the military manuals of Argentina, Australia, Canada, China, Dominican Republic, El Salvador, France, Germany, Israel, Madagascar, Netherlands, New Zealand, Nicaragua, Nigeria, Peru, Senegal, Spain, Sweden, Switzerland, Uganda, United Kingdom, United States and Yugoslavia, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2193–2197. See the legislation of Argentina, Armenia, Australia, Azerbaijan, Bangladesh, Belgium, Bosnia and Herzegovina, Burundi, Canada, China, Colombia, Congo, Croatia, Estonia, Ethiopia, Georgia, Germany, South Korea, Lithuania, Mali, Mozambique, Netherlands, New Zealand, Paraguay, Slovenia, Spain, Trinidad and Tobago, United Kingdom and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2197–2202. United Kingdom, UN Personnel Act, 1997, section 1(1), reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 609–610.

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National case-law,591 as well as the European Parliament, Council of Europe and Gulf Cooperation Council592 have confirmed that rape constitutes a war crime. The UN bodies condemned sexual violence on numerous occasions, in particular the Security Council,593 the General Assembly,594 and the Human Rights Commission.595 Sexual violence is prohibited under human rights law primarily through the prohibition of torture and cruel, inhuman or degrading treatment or punishment. Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their statements, military manuals, and United Nations resolutions. Due to the absolute character of the rule and its tendency toward universal application, this principle should also be considered as jus cogens. As a consequence, States are under erga omnes obligations to respect it.

591 China, War Crimes Military Tribunal of the Ministry of National Defence, Takashi Sakai case, Judgement, 29 August 1946; United States, Court of Military Appeals, John Schultz case, Judgement, 5 August 1952, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2202. 592 See European Parliament, Resolution on the rape of women in the former Yugoslavia, 11 March 1993, paras. 1–4; Council of Europe, Committee of Ministers, Declaration on the Rape of Women and Children in the Territory of Former Yugoslavia, 18 February 1993, para. 4; Gulf Cooperation Council, Supreme Council, Final Communiqué of the 13th Session, annexed to Letter dated 24 December from the UAE to the UN Secretary-General, UN Doc. A/47/845-S/25020, 30 December 1992, p. 8, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2213. 593 See UN Security Council, Resolution 798, 18 December 1992, para. 2; Resolution 820, 17 April 1993, para. 6; Resolution 827, 25 May 1993, preamble; Resolution 1019, 9 November 1995, preamble; Resolution 1034, 21 December 1995, para. 2. 594 UN General Assembly, Resolution 48/143, 20 December 1993, paras. 1–3; Resolution 49/196, 23 December 1994, para. 16; Resolution 50/192, 22 December 1995, paras. 1–3; Resolution 50/193, 22 December 1995, para. 15; Resolution 51/114, 12 December 1996, para. 3; Resolution 51/115, 12 December 1996, paras. 1 and 3. 595 UN Commission on Human Rights, Resolution 1994/72, 9 March 1994, para. 14; Resolution 1996/71, 23 April 1996, paras. 1–2; Resolution 1998/75, 22 April 1998, para. 3.

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4.2.5 The Taking of Hostages is Prohibited The prohibition of taking of hostages is mentioned in Common Article 3, the Fourth Geneva Convention,596 and the Additional Protocols.597 Under the Statutes of the ICC,598 the ICTY, ICTR and of the Special Court for Sierra Leone,599 the taking of hostages constitutes a war crime. Numerous military manuals600 and national legislations601 prohibit the taking of hostages. For example, the United Kingdom UN Personnel Act provides that “if a person does outside the United Kingdom any act to or in relation to a UN worker which . . . would have made him guilty of . . . kidnapping . . . he shall be . . . guilty of that offence.”602

596 Article 34 and Article 147 of the Fourth Geneva Convention. These provisions were to some extent a departure from international law as it stood at that time, articulated in the List (Hostages Trial) case, in which the US Military Tribunal at Nuremberg did not rule out the possibility of an occupying power taking hostages as a measure of last resort and under certain strict conditions: United States, Military Tribunal at Nuremberg, List (Hostages Trial) case, Judgement, 19 February 1948, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2276. 597 Article 75(2)(c) of Additional Protocol I; Article 4(2)(c) of Additional Protocol II. 598 Article 8(2) of the ICC Statute. 599 Article 2 of the ICTY Statute; Article 4(c) of the ICTR Statute; Article 3 of the Statute of the Special Court for Sierra Leone. 600 See the military manuals of Argentina, Australia, Belgium, Benin, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, France, Germany, Hungary, Italy, Kenya, South Korea, Madagascar, Mali, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Philippines, Romania, Russia, Senegal, South Africa, Spain, Sweden, Switzerland, Togo, United Kingdom, United States and Yugoslavia, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2264–2268. 601 See the legislation of Argentina, Armenia, Australia, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium, Bosnia and Herzegovina, Botswana, Bulgaria, Burundi, Cambodia, Congo, Cook Islands, Cote d’Ivoire, Croatia, Canada, China, Cyprus, El Salvador, Estonia, Ethiopia, Georgia, Germany, India, Ireland, Israel, Jordan, Kazakhstan, Kenya, Kyrgyzstan, Lebanon, Lithuania, Luxembourg, Malawi, Malaysia, Mali, Mauritius, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Papua New Guinea, Poland, Portugal, Romania, Russia, Seychelles, Singapore, Slovenia, Spain, Sri Lanka, Tajikistan, Thailand, Trinidad and Tobago, Uganda, United Kingdom, United States, Vanuatu, Yemen and Zimbabwe, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2268–2275. 602 United Kingdom, UN Personnel Act, 1997, section 1(1), reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 609–610.

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International organisations, in particular the Security Council,603 General Assembly604 Human Rights Commission,605 and regional bodies606 have also condemned instances of hostage-taking. For example, in a resolution adopted in 1989, the Parliamentary Assembly of the Council of Europe declared that it was preoccupied by “the recent taking of ICRC delegates in Lebanon as hostages in the accomplishment of their mission.”607 In 1994, the Security Council expressed its grave concern over “the disappearance of humanitarian relief workers” and demanded “their immediate release by the responsible parties.”608 The General Assembly also condemned specifically the “abduction, hostagetaking, kidnapping . . . to which those participating in humanitarian operations are increasily exposed.”609 This prohibition can also be found in international case-law.610 Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their statements, legislation, military manuals, court decisions, and United Nations resolutions. 4.2.6 Arbitrary Deprivation of Liberty is Prohibited The Fourth Geneva Convention specifies that a civilian may only be interned if the security of the Detaining Power makes it absolutely necessary (Article 42) or, in occupied territory, for “imperative reasons of security” (Article 78). In the Delalic case, the ICTY interpreted Article 42 as permitting internment only if 603 UN Security Council, Resolution 664, 18 August 1990, para. 1; Resolution 674, 29 October 1990, para. 1; Resolution 686, 2 March 1991, para. 2; Resolution 706, 15 August 1991, para. 6. 604 UN General Assembly, Resolution 53/164, 9 December 1998, para. 8. 605 UN Commission on Human Rights, Resolution 1992/71, 5 March 1992, para. 2; Resolution 1992/S-1/1, 14 August 1992, para. 5; Resolution 1995/55, 3 March 1995, para. 11; Resolution 1998/60, 17 April 1998, para. 19; Resolution 1998/62, 21 April 1998, para. 4. 606 Council of Europe, Parliamentary Assembly, Resolution 950, 1 October 1990, para. 2; European Parliament, Resolution on violations of human rights and humanitarian law in Chechnya, 16 March 2000, para. 11; OAS, Permanent Council, Resolution on Hostages in El Salvador, 1989, para. 4, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2279–2281. 607 Council of Europe, Parliamentary Assembly, Resolution 921, 6 July 1989, para. 8. 608 UN Security Council, Resolution 945, 29 September 1994, para. 11. See also Resolution 952, 27 October 1994, para. 8. 609 UN General Assembly, Resolution 54/192, 17 December 1999, preamble and para. 4. 610 ICTY, Karadzic and Mladic case, Initial Indictment, 24 July 1995, paras. 46–48; ICTY, Blaskic case Judgement, 3 March 2000, para. 187; ICTY, Kardic and Cerkez case, Judgement, 26 February 2001, Part V.

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there are “serious and legitimate reasons” to think that the interned persons may seriously prejudice the security of the detaining power by means such as sabotage or espionage.611 Detention that is not in conformity with the rules provided by the Geneva Conventions is referred to as “unlawful confinement” and it is a grave breach under the Fourth Geneva Convention,612 as well as under the Statute of the ICC, the Statute of the ICTY and UNTAET Regulation 2000/15 for East Timor.613 Several human rights treaties614 and international instruments615 provide that no one may be deprived of his or her liberty except for reasons and under conditions previously provided by law. The military manuals616 and the national legislation617 of many States criminalise unlawful deprivation of liberty during armed conflict. This prohibition was also upheld in several court cases.618 Alleged cases of unlawful 611 ICTY, Delalic case, Judgement , 16 November 1998, paras. 580–583. 612 Article 147 of the Fourth Geneva Convention. 613 Article 8(2) of the ICC Statute, Article 2(g) of the ICTY Statute. 614 Article 9(1) of the International Covenant on Civil and Political Rights; Article 37(b) of the Con­vention on the Rights of the Child; Article 5(1) of the European Convention on Human Rights; Article 7 of the American Convention on Human Rights; Article 6 of the African Charter on Human and Peoples’ Rights. 615 Article 3 of the Universal Declaration on Human Rights; Articles I and XXV of the American Decla­ration on the Rights and Duties of Man; Principle 2 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Article 20 of the Cairo Declaration on Human Rights in Islam; Article 6 of the EU Charter of Fundamental Rights. 616 See the military manuals of Argentina, Australia, Canada, Croatia, France, Germany, Hungary, Netherlands, New Zealand, Nigeria, South Africa, Switzerland, Uganda, United Kingdom and United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2329–2331. 617 See the legislation of Argentina, Australia, Azerbaijan, Bangladesh, Barbados, Belgium, Bosnia and Herzegovina, Botswana, Bulgaria, Burundi, Cambodia, Canada, China, Colombia, DRC, Congo, Cook Islands, Cote d’Ivoire, Croatia, Cyprus, El Salvador, Ethiopia, Georgia, Germany, India, Ireland, Jordan, Kenya, Lebanon, Luxembourg, Malawi, Malaysia, Mali, Mauritius, Moldova, Myanmar, the Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Papua New Guinea, Paraguay, Portugal, Romania, Seychelles, Singapore, Slovenia, Spain, Sri Lanka, Sweden, Tajikistan, Trinidad and Tobago, Uganda, United Kingdom, United States, Vanuatu, Yemen and Zimbabwe, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., pp. 2331–2337. 618 Netherlands, Temporary Court-Martial at Makassar, Motomura case, Judgement, 18 July 1947; Netherlands, Temporary Court-Martial at Makassar, Notomi Sueo case, Judgement, 4 January 1947; Netherlands, Special Court (War Criminals) at The Hague, Rauter case, Judgement, 4 May 1948; Netherlands Special Court in Amsterdam, Zuhlke case, Judgement,

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deprivation of liberty have been condemned by the Security Council,619 the General Assembly,620 and the Commission on Human Rights.621 In particular, in a resolution adopted in 1994, the Security Council condemned the “detention and maltreatment of . . . humanitarian relief workers and other international personnel.”622 The General Assembly also condemned specifically the “illegal arrest and detention to which those participating in humanitarian operations are increasily exposed.”623 Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their statements, legislation, military manuals and United Nations resolutions. 4.2.7 Humanitarian Personnel should be able to Fulfil Their Duties The obligation of respect for medical personnel includes the fact that medical personnel should be able to fulfil their medical duties in conformity with military ethics.624 In addition, civilian medical personnel should have the right to perform their medical mission and to maintain medical confidentiality, except as required by law.625 Similarly, religious personnel626 and civil defence organisations627 should also be able to fulfil their tasks in international armed conflict. The negotiations carried out at the 1974–1977 Diplomatic Conference demonstrate that the meaning of “respected and protected” for civil defence

619 620 621 622 623 624 625 626 627

6 December 1948; United Kingdom, Military Court at Luneberg, Auschwitz and Belsen case, Judgement, 17 November 1945; United States, Military Tribunal at Nuremberg, Pohl case, Judgement, 3 November 1947, cited in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 2, op. cit., p. 2338. UN Security Council, Resolution 1019, 9 November 1995, preamble; Resolution 1034, 21 December 1995, preamble; Resolution 1072, 30 August 1996, preamble. UN General Assembly, Resolution 50/193, 22 December 1995, preamble; Resolution 55/116, 4 December 2000, para. 2. UN Commission on Human Rights, Resolution 1996/71, 23 April 1996, para. 1; Resolution 1996/73, 23 April 1996, para. 15. UN Security Council, Resolution 950, 21 October 1994, paras. 7–8. UN General Assembly, Resolution 54/192, 17 December 1999, preamble and para. 4. Articles 24–25 of the First Geneva Convention; Articles 36–37 of the Second Geneva Convention; Articles 15–16 of Protocol I. Articles 15–16 of Protocol I. Article 24 of the First Geneva Convention; Article 36 of the Second Geneva Convention; Article 15 of Protocol I. Article 62 of Protocol I.

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organisations included that they be unnecessarily prevented from carrying out their tasks.628 The military manuals629 and the national legislation630 of States reiterate the right for medical personnel to perform their medical mission. A reproduction of the rule that parties should allow medical personnel to fulfil their duties in conformity with medical ethics is found in other manuals.631 Case law supports this right,632 as well as resolutions from the General Assembly633 and Human Rights Commission.634 The military manuals635 of States reiterate the right for religious personnel to perform their spiritual mission. The obligation of respect, enabling them to perform their duties, is also valid for all NGOs performing humanitarian missions. The General Assembly confirmed this fact in a resolution, adopted in 1997, on the safety and security of humanitarian personnel, which strongly condemned “any act or failure to act, which obstructs or prevents humanitarian personnel from discharging their humanitarian functions, or which entails their being subjected to threats, the use of force of physical attacks frequently resulting in injury or death.”636 Due to wide State practise and opinio juris, this principle can be considered as customary in both internal and international armed conflicts. States have widely endorsed this principle, as demonstrated in their legislation, military manuals, and United Nations resolutions. 628 Erik Schultz, Civil Defence in International Law, op. cit., p. 15. 629 See the military manuals of Argentina, Benin, Canada, Croatia, Germany, Indonesia, Madagascar, the Netherlands, New Zealand, Nigeria, South Africa, Switzerland, Togo and US Field Manual, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 457–465. 630 See the legislation of Bangladesh, Colombia and Norway, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 466–467. 631 See the military manuals of Argentina, Australia, Canada, the Netherlands, New Zealand, Senegal and Spain, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 487–489. 632 In the Levy case in 1968, the US Army Board of Review held that medical ethics could not excuse disobedience to the orders of a superior: United States Army Board of Review, Levy case, Judgement, 29 August 1968, reproduced in reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., p. 489. 633 UN General Assembly, Resolution 44/165, 15 December 1989, preamble and para. 5. 634 UN Commission on Human Rights, Resolution 1990/77, 7 March 1990, para. 10. 635 See the military manuals of Australia, Benin, Israel, Madagascar, the Netherlands, Nigeria, Switzerland, Togo and the United States, reproduced in ICRC, Customary International Humanitarian Law, Practice, Vol. II, Part 1, op. cit., pp. 499–502. 636 UN General Assembly, Resolution 52/167, 16 December 1997, para. 2.

Conclusion There is a comprehensive IHL framework covering NGOs’ activities while acting in armed conflict situations. Firstly, NGOs are mentioned in the provisions of a number of IHL treaties. Treaties refer to the members of the Movement, the ICRC, the Federation, and the National Societies. However, IHL treaties also refer to 13 other types of organisations. All of the 16 organisations referred to in IHL treaties can operate in international armed conflict. But only seven of them are covered by provisions relative to non-international armed conflict: the three members of the Movement, the medical and religious personnel, the “impartial humanitarian bodies,” and the “relief societies.” The “voluntary aid societies,” civil defence organisations, substitutes of a Protecting Power, “organisations assisting the prisoners of war,” “international religious organisations,” “organisations approved by parties to the conflict,” “social organisations,” “organisations engaged in family reunification,” and “organisations assisting the protected persons” are only referenced in provisions concerning international armed conflicts. Although more than a dozen different terms are used in IHL treaties to refer to organisations acting in armed conflict, these organisations are very similar in terms of criteria and mandate. We have seen in Chapter 3, for example, that the civilian medical and religious personnel include the personnel of “civil defence organisations,” “impartial humanitarian bodies,” “voluntary aid societies,” and National Societies. Table 1 presents an analysis of the interrelations between the definitions of the organisations cited in IHL treaties. Apart from the members of the Movement, any NGO that falls into any one of the 13 categories could also satisfy at least five other definitions. Secondly, existing NGOs can fit the criteria of the organisations cited in IHL treaties. For example, as MSF is respecting the IHL principles of impartiality and humanity, it can be considered by States and rebel groups as an “impartial humanitarian body.” Similarly, an organisation such as OXFAM fits the criteria of being a “relief society,” according to the terms of the Geneva Conventions and Additional Protocols. Table 2 presents an analysis of a few major NGOs that could fit the criteria of entities cited in IHL treaties. The table is referring to World Vision International (WVI), Médecins sans Frontières (MSF), Concern

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International, Catholic Relief Services (CRS), International Rescue Committee (IRC), Geneva Call, Addameer,1 Caritas and Maison Shalom.2 Thirdly, as a consequence of their mention in IHL treaties, NGOs benefit from a certain international legal status, as recognised by the ICTY. The ICTY Trial Chamber stated: “It is widely acknowledged that the ICRC, an independent humanitarian organisation, enjoys a special status in international law, based on the mandate conferred upon it by the international community. The Trial Chamber notes that the functions and tasks of the ICRC are directly derived from international law, that is, the Geneva Conventions and Additional Protocols.”3 By implication, it followed for the Chamber that the ICRC was capable of possessing international rights.4 The ICTY then concluded that a functional interpretation of the relevant provisions of the Geneva Conventions and Additional Protocols lead to the conclusion that there exists a conventional obligation for the parties to the agreements and a corresponding right of the ICRC opposable toward those parties not to disclose information.5 Observing that at the time 188 States had ratified the Geneva Conventions and analysing State practise toward the ICRC, the Chamber concluded that the ICRC had a right under customary law to non-disclosure of information.6 Fourthly, NGOs directly cited in IHL treaties, such as the members of the Movement, have rights according to IHL treaties. Other NGOs, not cited as such in IHL treaties, but who possess functions and purposes of specific entities mentioned in these treaties, can also benefit from the same rights, according to the participant conception and a functional approach of international law.7 These NGOs, such as MSF or OXFAM, are indeed efficient actors in conflict situations.

1 ADDAMEER Prisoners Support and Human Rights Association is a Palestinian NGO focusing on offering support for Palestinian prisoners. The organisation is engaged in the following activities: legal aid, regular prison visits, social counseling, documentation on Palestinian detainees, media coverage and advocacy: see http://www.addameer.org/. 2 Maison Shalom is a Burundian organisation based in Ruyigi that is involved in family reunification for children separated from their families during the recent war in Burundi: see http:// www.maisonshalom.net/. 3 ICTY, Trial Chamber, Prosecutor v. Simic and al, Decision on the prosecution motion under rule 73 for a ruling concerning the testimony of a witness, 27 July 1999, para. 46. 4 Ibid., para. 72. 5 Ibid., paras. 72–73. 6 Ibid., para. 74. 7 The status of an organisation is evaluated on the basis of its actual existence and functions.

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In particular, NGOs benefit from customary rights in IHL. Four customary rights were granted to the various entities mentioned in IHL treaties: a right of initiative, to have access to protected persons, to provide relief to protected persons, and to be respected and protected. All of the 16 organisations mentioned in IHL treaties have these four customary rights, except “social organisations” that do not have a right to have access to protected persons or to provide relief to protected persons. Almost all of the customary rights granted to NGOs apply in both internal and international conflicts.8 In addition, there is no substantial difference between the content of the rights granted to NGOs in international armed conflicts and in internal armed conflict. Therefore, the gap between the norms applicable to NGOs in international and non-international armed conflict is minimal. These customary rights are opposable to all States.9 In addition, certain IHL provisions will have to be respected by other parties to the conflict, including armed groups.10 Armed groups have been investigated for committing IHL violations,11 and have been called on to comply with IHL.12 In particular, violations of jus cogens norms have been invoked with regard to the accountability of both State and non-State actors in an armed conflict 8

The four customary rights granted to NGOs are applicable in international and non-international armed conflicts. The only exception concerns the right of humanitarian organisations to have access to prisoners of war and internees and the right to engage in the task of families’ reunion, which are customary only in international armed conflicts. This is however logical as IHL provisions on prisoners of war only relate to international armed conflict, and “organisations engaged in the task of family reunification” are only referred to in IHL provisions covering international armed conflicts. 9 Rights granted to such NGOs can be opposed to States not parties to IHL treaties, as a majority of States ratified the 1949 Geneva Conventions and Additional Protocol I (see the ICJ’s Reparations for injuries case and ICTY’s Prosecutor v. Simic and al. case, both cited above). 10 Christopher Greenwood for example stated that armed groups are bound by the IHL obligations found in Article 3 common of the Geneva Conventions and Protocol II: Christopher Greenwood, “The Law of War,” in M. Evans (ed.), International Law, Oxford University Press, Oxford, 2003, p. 816. 11 See for example the investigations undertaken by the Truth and Reconciliation Commission of Sierra Leone and the Guatemalan Historical Clarification Commission, which examined IHL violations committed by insurgents: Supplement to the Sierra Leone Gazette, Vol. CXXXI, No. 9, 10 February 2000 and Guatemala Memory of Silence, Executive Summary Conclusions and Recommendations, UN Doc. A/53­­/928 Annex, 27 April 1999. 12 See for example the statement of the Chairperson of the Commission on Human Rights, OHCHR/STM/CHR/03/2, Situation of Human Rights in Colombia.

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situation. Even where the individual has no State function, the jus cogens norms may apply.13 The ICTY detailed some consequences arising in the context of a violation of a jus cogens norm: first, the principle at issue cannot be derogated from by States;14 second, the principle de-legitimise any legislative, administrative, or judicial act authorising its violation;15 third, the victim can bring a civil suit for damage in a foreign court;16 fourth, every State is entitled to investigate, prosecute and punish or extradite individuals who violated this principle, who are present in a territory under its jurisdiction.17 It is important to clarify the role of recognition in this process, i.e who has the power to recognise a NGO as one of the entities mentioned in IHL treaties or to recognise the rights granted to NGOs.18 We have seen that it is neither necessary nor sufficient to be recognised by States in order to acquire international legal status. Rather it is a matter of norm interpretation whether a specific entity enjoys international legal personality. IHL treaties do not specify who is to be the judge, or characterising agent, of the existence of an NGO. One author in particular argues that norms developed after the Second World War effected a fundamental change in the conditions of applicability of IHL. Whereas, previous norms depended at least in part on State recognition of belligerency or of the existence of a state of war, the Geneva Conventions and Protocols, and new customary rules, contains norms that are intended to apply automatically. Therefore, the applicable nature of IHL finds it source in the norms themselves and not in the intervening act of recognition or characterisation.19 State characterisation has a declaratory rather than a constitutive function. Therefore, recognition can have evidentiary value since having been recognised as an international person may provide an indication that norms of general custom apply to the entity in question.20 But the State

13 Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit., p. 90. 14 ICTY, Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement of 10 December 1998, para. 153. 15 Ibid., para. 155. 16 Ibid., para. 155. 17 Ibid., para. 156. 18 NGOs do not have the “competence de la compétence” to interpret IHL treaties. 19 René Provost, International Human Rights and IHL, op. cit., pp. 280–281. 20 To a certain extent, the reasoning in Prosecutor v. Simic et al. (Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness), ICTY Trial Chamber, 27 July 1999, para. 46, can be understood along these lines when the Chamber declared a customary rule to confidentiality applicable to the ICRC.

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does not have an exclusive right to unilateral characterisation, except with respect to discretionary powers.21 Customary norms and IHL treaties create an obligation for States to apply certain basic rules to armed conflict. A State cannot lawfully decide that it will not apply those norms, due to its own characterisation of the conflict or for any other reasons.22 The ICTR made a similar assessment in the Akayesu case.23 Given that all States have a legal interest in the application of certain erga omnes norms of IHL, concurrent characterisation by other States is possible. In addition, High Contracting Parties have a duty to “ensure respect” of the 1949 Geneva Conventions. It should, therefore, be considered that the ‘recognition’ of NGOs by States is not necessary for them to benefit from rights under IHL.24 To conclude, since the activities of NGOs in armed conflict situations are comprehensively covered by IHL provisions, legal scholars and practitioners should refer to these provisions when addressing status and activities of NGOs in armed conflict. Although the ICRC, the Federation, and the National Societies have a special position in IHL treaties that grants them advantages and responsibilities, it is not their province only. In addition, as almost all of the IHL provisions cited in the book are applicable in both international and non-international armed conflict, NGOs should not shirk from referring to IHL rather than human rights law.25 21

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These powers include, for example, recognition of governments, the establishment of diplomatic relations or diplomatic protection of national abroad etc.: see Jean Salmon, “Some Observations on Characterization in Public International Law,” in Antonio Cassese (ed.), UN Law/Fundamental Rights, Sijthoff and Noordhoff, Alphen Aan Den Rijn, 1979, p. 12. See Article V of the Resolution on the Application of IHL and Fundamental Human Rights, in Armed Conflicts in which Non-State entities are Parties, adopted by l’Institut de droit international. “If the application of IHL depended solely on the discretionary judgement of the parties to the conflict, in most cases there would be a tendency for the conflict to be minimized by the parties thereto:” Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 603. As seen ealier, some NGOs should however be registered with the State of the country they operate in, and some activities are subject to the consent of the relevant State. In addition, international courts and tribunals may authoritatively determine whether an NGO satisfies criteria, for example, if denial of a right to a NGO has consequences for individual criminal responsibility. Reference to IHL for NGOs frequently imply a qualification of the conflict that could have political and human consequences (such as the “legitimisation” of killings or getting lost in subjective argumentation with the Government or armed groups whether the threshold of an armed conflict has been reached), on the contrary to human rights: see Andrew

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From a pragmatic point of view, referring to IHL in their activities offers other advantages to NGOs. In a context where international law evolves toward the protection of the individual, NGOs gain legitimacy from claiming their legality within international law. NGOs can claim legitimacy because of the importance that IHL places on human duties.26 An organisational mission to challenge and end violations is derived from a moral case based on the values of humanity and impartiality.27 This moral case gives NGOs an ethical legitimacy that resonates with people worldwide.28 As NGOs are self-mandating and by definition do not operate according to mandates given to them by States under international law, NGOs claim their legality within international law and by their being law-abiding. The fact that they operate in accordance with government legislation, or specific IHL provisions (like provisions on impartiality and humanity), thus contributes to their legitimacy with States and non-State actors. NGOs should also respect IHL provisions. Humanitarian organisations sometimes accept breaches to IHL. There is a dilemma in humanitarian action: assisting the victims of armed conflicts at any price, thereby violating the principles of neutrality and impartiality or, violating the principle of humanity by refusing to accept the conditions imposed by the parties to armed conflicts. Additional problems arise when NGOs expand their humanitarian assistance role by including in their mission development or peace building issues, or combine it with a missionary role.29

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Clapham, Human Rights Obligations of Non-State Actors, op. cit., pp. 46–47; Rachel Brett, “Non-Governmental Human Rights Organizations and IHL,” International Review of the Red Cross, No. 324, September 1998, pp. 531–536; International Council on Human Rights Policy (ICHRP), Ends & Means: Human Rights Approaches to Armed Groups, ICHRP, Versoix, 2000, p. 63; ICRC, Improving Compliance with IHL,” Background Paper Prepared for the Informal High-Level Expert Meeting on Current Challenges to IHL, 25–27 June 2004, Cambridge, p. 4, available at: http://www.smallarmssurvey.org/. For a full exploration of this issue, see International Council on Human Rights Policy (ICHRP), Taking Duties Seriously: Individual Duties in Human Rights Law, ICHRP, Geneva, 1999. Alan Fowler, Civil Society, NGOs and Social Development, UNRISD, Geneva, 2000. Hugo Slim, “By What Authority? The Legitimacy and Accountability of Non-governmental Organisations,” International Council on Human Rights Policy, 2002, available at: http:// www.jha.ac. Wolf-Dieter Eberwein, “Politics and the World of Humanitarian Aid,” in Bob Reinalda, (ed.), The Ashgate Research Companion to Non-State Actors, Ashgate, Farnham/Burlington, 2011, p. 365.

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In the current political context, the role of humanitarian action as an impartial, neutral and independent activity in its own right has come under siege. For example, the Humanitarian Response Review proposed by Jan Egeland in 2005 represents a major attempt to reform the humanitarian system. According to this system, nine clusters were originally identified, that is specific areas needed to be improved in the delivery of aid, under United Nations’ coordination. For each cluster, a cluster leader (usually a United Nations agency) would coordinate activities. There is therefore a tendency to include humanitarian aid in integrated missions with both a military and a civilian political component, to which the ICRC and the Federation expressed objections. To mitigate this opposition, the Global Humanitarian Platform was created, recognising the independence of the Red Cross and Red Crescent Movement and NGOs. The challenge however remains. In addition, even though codes of conduct exist which emphasise neutrality, impartiality and independence, humanitarian NGOs differ with respect to their fundamental understanding of the humanitarian imperative.30 As IHL provisions are not outdated and remain relevant, they can be used by NGOs in their advocacy efforts to respond to current challenges. Such advocacy efforts could benefit from specific references to IHL provisions, instead of avoiding mention of IHL provisions in new advocacy concepts (like “humanitarian space”) or referring only to “IHL principles.” It is true that many humanitarians feel that international legal standards are not a very effective source of power in humanitarian negotiations, specifically when counterparts lack political will or are reluctant to acknowledge such standards.31 For practitioners confronted with applying IHL in the field, ensuring compliance with the existing rules can be seen as the primary challenge, in a context where important States discredit IHL, there is a politisation of humanitarism, a generalisation of the norms, and a multiplication of actors. However, IHL treaties still provide the most powerful legal arguments in negotiating with armed groups and States in armed conflict situations.32 The protection afforded by international treaties is in no way theoretical: armed 30 31

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Ibid., pp. 372–373. Deborah Mancini-Griffoli and André Picot, Humanitarian Negotiation, A Handbook for Securing Access, Assistance and Protection for Civilians in Armed Conflict, Centre for Humanitarian Dialogue, Geneva, 2004, p. 70. Especially as some IHL treaties are in fact law-making treaties and reflect customary law; as the ICJ stated in the North Sea Continental Shelf, a treaty rule may be declaratory of custom at the time when the provision is adopted, crytallise custom, or serve to generate a rule of customary international law by subsequent practise of States.

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groups feel bound by such treaties. In addition, by requesting a consistent application of IHL in different armed conflicts, NGOs will render advocacy efforts predictable, consistent, and more credible. As the president of the ICRC stated in 2002: “The greatest challenge today towards which the ICRC, but also the international community as a whole, should direct its energies is ensuring greater respect of existing rules. Without greater respect of existing rules the credibility and protective value of new rules would also be very limited.”33

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Jakob Kellenberger, IHL at the Beginning of the 21st Century, Statement at the 26th Round Table in San Remo, 5 September 2002, available at: http://www.icrc.org.

Selected Bibliography 1

Primary Sources

1.1 Treaties

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949. Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899. Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, The Hague, 29 July 1899. Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949. Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907. Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, The Hague, 18 October 1907. Convention and Statute Establishing an International Relief Union, Geneva, 12 July 1927. Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 6 July 1906. Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Geneva, 22 August 1864. Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954. Convention on Cluster Munitions, 30 May 2008. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris, 13 January 1993.

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Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction, 18 September 1997. Convention Relative to the Treatment of Prisoners of War, Geneva, 27 July 1929. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005. Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), 28 November 2003. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Geneva, 10 October 1980. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 3 May 1996 (Protocol II to the 1980 Convention). Rome Statute of the International Criminal Court, 17 July 1998. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999.

1.2

Declarations and Resolutions

“Déclaration de la conférence internationale pour la protection des victimes de la guerre, adoptée à Genève le 1er septembre 1993,” dans Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry Dunant, Genève, 1996. “Déclaration sur les règles de droit international humanitaire relatives à la conduite des hostilités dans les conflits armés non internationaux, adoptée par le Conseil de l’Institut international de droit humanitaire de San Remo le 7 avril 1990,” dans Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry Dunant, Genève, 1996. “Human Rights in Armed Conflicts,” Resolution XXIII adopted by the International Conference on Human Rights, Teheran, 12 May 1968. “La protection des droits de l’homme et le principe de non-intervention dans les affaires intérieures des Etats, Résolution adoptée par l’Institut de Droit international à la session de Saint-Jacques-de-Compostelle, le 13 septembre 1989,” dans Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry Dunant, Genève, 1996.

Selected Bibliography

349

“Le principe de non-intervention dans les guerres civiles, Résolution adoptée par l’Institut de Droit international lors de sa session de Wiesbaden le 14 août 1975,” dans Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry Dunant, Genève, 1996. “Principles and Action in International Humanitarian Assistance and Protection,” Resolution 4 of the 26th International Conference of the Red Cross and Red Crescent, 1996. “Resolution 11 on the Principles of Humanitarian Assistance, adopted by the Council of Delegates in Birmingham in 1993,” International Review of the Red Cross, No. 297, November–December 1993, p. 502. “Resolution 12 on Humanitarian Assistance in Situations of Armed Conflicts, adopted by the Council of Delegates in Budapest in 1991,” International Review of the Red Cross, No. 286, January–February 1992, p. 56. Resolution IV, Cooperation of Nations Red Cross (Red Crescent, Red Lion and Sun) Societies in Civilian Defense, Council of Delegates, Prague, 1961. Resolution VII, Status of Personnel of Civil Defense Service, Council of Delegates, Geneva, 1963. Resolution XV, Status of Civil Defense Service Personnel, XXIst International Conference of the Red Cross, Istanbul, 1969. Resolution XXIX, Personnel of Civil Defense Service, XXth International Conference of the Red Cross, Vienna, 1965.

1.3

“54e

Workshops and Conferences Documents

Conférence de l’International Law Association,” Revue internationale de la croixrouge, No. 622, octobre 1970, pp. 665–666. “Conclusions du séminaire sur l’application de la Convention européenne sur la reconnaissance de la personnalité juridique des organisations internationales non gouvernementales,” Associations transnationales, mars 1998, pp. 160–162. “Des principes de l’action transnationale, Document du séminaire sur l’Organisation non gouvernementale, Milan, 1972,” Associations internationales, 1972, pp. 402–406. “Le CICR, la Ligue et le Rapport sur la Réévaluation du Rôle de la Croix-Rouge (I),” Revue internationale de la croix-rouge, No. 710, mars-avril 1978, pp. 75–89. “Le CICR, la Ligue et le Rapport sur la Réévaluation du Rôle de la Croix-Rouge (II): Assistance en cas de catastrophes naturelles,” Revue internationale de la croix-rouge, No. 711, mai-juin 1978, pp. 155–160. “Le CICR, la Ligue et le Rapport sur la Réévaluation du Rôle de la Croix-Rouge (III): Protection et assistance en cas de conflits armés,” Revue internationale de la croixrouge, No. 712, juillet-août 1978, pp. 205–209.

350

selected bibliography

“Le CICR, la Ligue et le Rapport sur la Réévaluation du Rôle de la Croix-Rouge (IV): Planification en vue des situations de catastrophes naturelles et de conflits armés,” Revue internationale de la croix-rouge, No. 713, septembre-octobre 1978, pp. 266–273. “Le CICR, la Ligue et le Rapport sur la Réévaluation du Rôle de la Croix-Rouge (VI): Collaboration entre la Ligue et le CICR, Relations entre les Sociétés nationales et le CICR, Conseillers extérieurs au CICR,” Revue internationale de la croix-rouge, No. 715, janvier–février 1979, pp. 16–27. “Le défi d’être humain—Rapport de la Commission indépendante sur les questions humanitaires internationales,” Revue internationale de la croix-rouge, No. 776, mars– avril 1989, pp. 172–173. “Les conflits armés liés à la désintégration des structures de l’État,” Document préparatoire du Comité international de la Croix-Rouge pour la 1ère réunion périodique sur le droit international humanitaire, Genève, 19–23 janvier 1998. “Les relations entre les associations transnationales (OING) et l’ordre international, Colloque,” Associations transnationales, juin 1977, pp. 247–256. “Rapport sur les travaux de la Conférence préliminaire des Sociétés nationales de la Croix-Rouge pour l’étude des Conventions et de divers problèmes ayant trait à la Croix-Rouge,” Revue internationale de la croix-rouge, No. 337, janvier 1947, pp. 1–40. “Rapport sur les travaux de la Conférence préliminaire des Sociétés nationales de la Croix-Rouge pour l’étude des Conventions et de divers problèmes ayant trait à la Croix-Rouge,” Revue internationale de la croix-rouge, No. 335, octobre 1946, pp. 879–940. “Règlement sur l’usage de l’emblème de la Croix-Rouge, du Croissant-Rouge et du Lionet-Soleil Rouge par les Sociétés nationales, Adopté par la XXe Conférence internationale de la Croix-Rouge réunie à Vienne en 1965,” Revue internationale de la croix-rouge, No. 567, mars 1966, pp. 121–130. Actes de la Conférence de Bruxelles (1874), Bruxelles, Imprimerie du Moniteur, 1874. Actes de la Conférence diplomatique convoquée par le Conseil Fédéral Suisse pour la révision de la Convention du 6 juillet 1906 pour l’amélioration du sort des blessés et malades dans les armées en campagne et pour l’élaboration d’une Convention relative au traitement des prisonniers de guerre et réunie à Genève du 1er au 27 juillet 1929, Genève, Imprimerie du journal de Genève, 1930. Compte-rendu de la Conférence internationale réunie à Genève les 26, 27, 28 et 29 octobre 1863 pour étudier les moyens de pourvoir à l’insuffisance du service sanitaire dans les armées en campagne, Genève, Imprimerie Fick. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I to IV, Federal Political Government, Berne, 1949. Official Records of the Diplomatic Conference on the Reaffirmation and Development of IHL Applicable in Armed Conflicts, Geneva (1974–1977), Vol. I to XVII, Federal Political Department, Bern, 1978. Regional Conflicts: Threats to World Peace and Progress, Transcripts of the DPI/NGO Annual Conference, 9–11 September 1992.

Selected Bibliography

351

Report on the Interpretation, Revision and Extension of the Geneva Convention of July 27, 1929, Sixteenth International Red Cross Conference, London, June 1938, International Red Cross Committee, Geneva, 1938, pp. 1–127. Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947, International Red Cross Committee, Geneva, 1947, pp. 1–332. Report on the Work on the Preliminary Conference of National Red Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross, Geneva, July 26–August 3, 1946, International Red Cross Committee, Geneva, 1947, pp. 1–142. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994. Seventeenth International Red Cross Conference, Stockholm, August 1948, Report, International Red Cross Committee, Geneva, 1948, pp. 1–113.

1.4

Draft Conventions

“Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality who are on Territory Belonging to or Occupied by a Belligerent, Tokyo, 1934,” in Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry-Dunant, Genève, 1996, pp. 449–457. “Projet de Convention pour la protection des populations civiles contre les nouveaux engins de guerre, adopté par l’Association de droit international lors de sa quatorzième Conférence, tenue à Amsterdam en 1938,” dans Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry-Dunant, Genève, 1996, pp. 301–304. “Projets de Conventions révisées ou nouvelles protégeant les victimes de la guerre. Textes approuvés et amendés par la XVIIe Conférence internationale de la CroixRouge: Convention pour l’amélioration du sort des blessés, des malades et des naufragés des forces armées sur mer,” Revue internationale de la croix-rouge, No. 360, décembre 1948, pp. 895–911. “Projets de Conventions révisées ou nouvelles protégeant les victimes de la guerre. Textes approuvés et amendés par la XVIIe Conférence internationale de la CroixRouge: Révision de la Convention conclue à Genève le 27 juillet 1929 et relative au traitement des prisonniers de guerre,” Revue internationale de la croix-rouge, No. 361, janvier 1949, pp. 10–63. “Projets de Conventions révisées ou nouvelles protégeant les victimes de la guerre. Textes approuvés et amendés par la XVIIe Conférence internationale de la CroixRouge: Convention pour la protection des personnes civiles en temps de guerre,” Revue internationale de la croix-rouge, No. 359, novembre 1948, pp. 790–842. Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, ICRC, Geneva, 1956.

352

selected bibliography

1.5

Other Documents

2

Secondary Sources

“Accord entre le Comité international de la Croix-Rouge et la Ligue des Sociétés de la Croix-Rouge tendant à préciser certaines de leurs compétences respectives (signé le 25 avril 1969),” Revue internationale de la croix-rouge, No. 612, décembre 1969, pp. 777–784. “Accord entre le Comité international de la Croix-Rouge et le Conseil fédéral suisse en vue de déterminer le statut juridique du Comité en Suisse,” Revue internationale de la croix-rouge, No. 800, mars–avril 1993, pp. 166–174. “Agreement for and Statute of the Special Court for Sierra Leone,” 16 January 2002. Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863. The Laws of War on Land, the Institute of International Law, Oxford, 9 September 1880.

2.1 Books

Aust, Anthony, Modern Treaty Law and Practice, Cambridge University Press, Cambridge, 2003. Baccino-Astrada, Alma, Manual on the Rights and Duties of Medical Personnel in Armed Conflicts, ICRC and League of Red Cross Societies, Geneva, 1982. Beigbeder, Yves, Le rôle international des organisations non-gouvernementales, L.G.D.J., Paris, 1992. ———, The Role and Status of International Humanitarian Volunteers and Organisa­tions: The Right and Duty to Humanitarian Assistance, Martinus Nijhoff, Dordrecht, 1991. Ben-Ari, Rephael H., The Normative Position of International Non-Governmental Organizations Under International Law: An Analytical Framework, Martinus Nijhoff Publishers/Brill, Leiden, 2012. Bendell, Jem, Debating NGO Accountability, United Nations—Non-Governmental Liaison Service, New York/Geneva, 2006. Berger, Jean-Francois, The Humanitarian Diplomacy of the ICRC and the Conflict in Croatia (1991–1992), ICRC, Geneva, 1995. Bettati, Mario, Droit humanitaire, Editions du Seuil, Paris, 2000. Bettati, Mario, et Dupuy, Pierre-Marie, Les O.N.G. et le Droit international, Collection Droit international, Economica, Paris, 1986. Bothe, Michael, The Handbook of IHL in Armed Conflicts, Oxford University Press, Oxford, 2008. Bouchet-Saulnier, Françoise, Droit d’initiative humanitaire, Médecins sans frontières, Paris, 1992.

Selected Bibliography

353

Bourgeois, Flore-Anne, Influences et interactions: les relations Etats-ONG dans le développement d’une politique européenne commune sur les armes légères, Mémoire de DEA, Institut universitaire de hautes études internationales, Genève, 2002. Bouvier, Antoine, and Sassòli, Marco, How Does Law protect in War?: Cases, Documents, and Teaching Materials on Contemporary Practice in IHL, second edition, ICRC, Geneva, 2006. Brownlie, Ian, Principles of Public International Law, fifth edition, Oxford University Press, Oxford, 1998. Bugnion, François, Le Comité international de la Croix-Rouge et la protection des victimes de la guerre, Comité international de la Croix-Rouge, Genève, 1994. Cahier, Philippe, Le droit diplomatique contemporain, Librairie Droz, Genève, 1964. Cameron, Maxwell A. (ed.), To Walk Without Fear, The Global Movement to Ban Landmines, Oxford University Press, Oxford, 1998. Camporini, Yolande, National Societies Auxiliaries of the Public Authorities, Their Activities in Time of Armed Conflict, Working Paper, Henry-Dunant Institute, Geneva, 1987. Carey, Henry F. and Richmond, Oliver P. (ed), Mitigating Conflict: The Role of NGOs, Frank Cass, London, 2003. Cassese, Antonio, International Law in a Divided World, Clarendon Press, Oxford, 1986. ———, International Law, second edition, Oxford University Press, Oxford, 2005. Cheng, Bing, General Principles of Law as Applied by International Courts and Tribunals, Stevens and Sons, London, 1953. Clapham, Andrew, Human Rights in the Private Sphere, Clarendon Press, Oxford, 1993. ———, Human Rights Obligations of Non-State Actors, Oxford University Press, New York, 2006. Comité International de la Croix-Rouge, Recueil de textes de référence relatifs à la CroixRouge Internationale, au Comité International de la Croix-Rouge et à la Ligue des Sociétés Nationales de la Croix-Rouge, CICR, Genève, janvier 1982. D’Amato, Anthony A., The Concept of Custom in International Law, Cornell University Press, New York, 1971. David, Eric, Principes de droit des conflits armés, Bruylant, Bruxelles, 1999. Des Gouttes, Paul, Commentaire de la Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, CICR, Genève, 1930. Doucin, Michel, Guide de la liberté associative dans le monde, Les législations des sociétés civiles de 138 pays, La documentation française, Paris, 2000. Edwards, Michael, and Hulme, David (eds.), Non-Governmental OrganisationsPerformance and Accountability Beyond the Magic Bullet, Earthscan Publications and Save the Children, London, 1995.

354

selected bibliography

Fleck, Dieter, The Handbook of IHL in Armed Conflicts, Oxford University Press, Oxford, 1995. Franklin, William Mc Henry, Protection of Foreign Interests, A study in Diplomatic and Consular Practice, United States Government Printing Office, Washington, 1946. Freymond, Jacques, Guerres, Révolution, Croix-Rouge, Réflexions sur le rôle du Comité international de la Croix-Rouge, Institut universitaire de hautes études internationales, Genève, 1976. Gasser, Hans-Peter, Le droit international humanitaire, Introduction, Institut HenryDunant, Genève, 1993. Gateau, Arielle, Médecins sans frontières et les Nations Unies dans le conflit somalien: la position d’une ONG, Mémoire de DEA, Institut universitaire de hautes études internationales, Genève, 1994. Goodhand, Jonathan, Aiding Peace ? The Role of NGOs in Armed Conflict, International Peace Academy, United Kingdom, 2006. Guillet, Sara, “Nous, peuples des Nations Unies . . .,” L’action des organisations non gouvernementales dans le système international de protection des droits de l’homme, Centre de Droit international de Paris I, Perspectives internationales No. 10, Montchrestien, Paris, 1995. Hannikainen, Lauri, Peremptory Norms (Jus Cogens) in International Law, Historical Development, Criteria, Present Status, Finnish Lawyers’ Publishing Company, Helsinki, 1988. Haug, Hans, Humanity for All: The International Red Cross and Red Crescent Movement, Henry Dunant Institute/Paul Haupt Publishers, Berne/Stuttgart/Vienna, 1993. Heckenroth, André, Les Puissances protectrices et l’application des Conventions de Genève, thèse, Aix, 1951. Hiebel, Jean-Luc, Assistance spirituelle et conflits armés, Institut Henry Dunant, Genève, 1980. Hiebel, Jean-Luc, Les droits humains de l’assistance spirituelle dans les conflits armés, thèse, Université des sciences humaines de Strasbourg, Strasbourg, 1976. Higgins, Rosalyn, The Development of International Law Through the Political Organs of the United Nations, Oxford University Press, Oxford, 1963. Hudock, Ann C., NGOs and Civil Society: Democracy by Proxy?, Polity Press, Cambridge, 1999. ICRC, Bibliography of IHL applicable in Armed Conflicts, ICRC & Henry-Dunant Institute, Geneva, 1987. ICRC, Customary IHL, Practice, Vol. II, edited by Doswald-Beck, Louise, and Henckaerts, Jean-Marie, Cambridge University Press, Geneva, 2005. ICRC, Customary IHL, Rules, Vol. I, edited by Doswald-Beck, Louise, and Henckaerts, Jean-Marie, Cambridge University Press, Geneva, 2005.

Selected Bibliography

355

ICRC, The Geneva Conventions of August 12, 1949, Analysis for the Use of National Red Cross Societies, Vol. I and II, ICRC, Geneva, 1950. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, December 2001, available at: http://www.iciss.ca. International Council on Human Rights Policy, Taking Duties Seriously: Individual Duties in Human Rights Law, ICHRP, Geneva, 1999. Jakovljevic, Bosko, New International Status of Civil Defense as an Instrument for Strengthening the Protection of Human Rights, Martinus Nihoff Publishers, The Hague/Boston/London, 1982. Janner, Antonino, La Puissance protectrice en droit international, d’après les expériences faites par la Suisse pendant la seconde guerre mondiale, Verlag von Helbing und Lichtenhahn, Bale, 1948. Jeannet, Stéphane (ed.), Civil Defence 1977–1997: from Law to Practice, Report of the Meeting of Experts on Civil Defence, organised by the International Civil Defence Organisation and the ICRC, 30 June–2 July 1997, Gollion, Switzerland, ICDO/ICRC, Geneva, 1997. Jeanty, Bernard, La protection du personnel sanitaire dans les conflits armés internationaux, thèse de licence, Université de Neuchâtel, Neuchâtel, 1990. Keane, John, Civil Society. Old Images, New Visions, Stanford University Press, Stanford, 1998. Korey, William, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine, Palgrave, London, 2001. Kwakwa, Edward, The International Law of Armed Conflict: Personal and Material Fields of Application, Kluwer Academic Publishers, Dordrecht, 1992. La Haye, Eve, War Crimes in Internal Armed Conflicts, Cambridge University Press, Cambridge, 2008. Lang, Sabine, NGOs, Civil Society and the Public Sphere, Cambridge University Press, Cambridge, 2013. Lanord, Christophe, Le statut juridique des sociétés nationales de la Croix-Rouge et du Croissant-Rouge, Editions de la Chapelle, Genève/Thoiras, 1999. Lavergne, Hervé, La protection et le respect du médecin au cours des hostilités, Pierre Moulin imprimeur, Lyon, 1954. Levie, Howard S., The Code of International Armed Conflict, Vol. I, Oceana Publications, London/Rome/New York, 1986. Lindblom, Anna-Karin, Non-Governmental Organisations in International Law, Cambridge University Press, Cambridge, 2005. ———, The Legal Status of Non-Governmental Organisations in International Law, Uppsala Universitet, Uppsala, 2001.

356

selected bibliography

Lissner, Jorgen, The Politics of Altruism, A Study of the Political Behaviour of Voluntary Development Agencies, Lutheran World Federation, Geneva, 1977. Malanczuk, Peter, Humanitarian Intervention and the Legitimacy of the Use of Force, Het Spinhuis, Amsterdam, 1993. Maresca, Louis, and Maslen, Stuart (eds.), The Banning of Anti-Personnel Landmines, The Legal Contribution of the ICRC 1995–1999, Cambridge University Press, Cambridge, 2000. Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law, Clarendon Press, Oxford, 1989. Meyrowitz, Henri, Le principe de l’égalité des belligérants devant le droit de la guerre, Pédone, Paris, 1970. Moreillon, Jacques, Le Comité international de la Croix-Rouge et la protection des détenus politiques, Thèse I.U.H.E.I., L’âge d’homme, Lausanne, 1973. Nijman, Janne Elisabeth, The Concept of International Legal Personality, An Inquiry Into the History and Theory of International Law, T.M.C. Asser Press, The Hague, 2004. Pictet, Jean, Développement et principes du droit international humanitaire, Cours donné en juillet 1982 à l’Université de Strasbourg dans le cadre de la Session d’enseignement organisée par l’Institut International des Droits de l’homme, Institut Henry Dunant/ Pédone, Genève/Paris, 1983. ———, The Fundamental Principles of the Red Cross: Commentary, Henry Dunant Institute, Geneva, 1979. ———, The Geneva Conventions of 12 August 1949: Commentary, ICRC, Geneva, 1952. Pilloud, Claude, and Pictet, Jean, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, in Sandoz, Yves, Swinarski, Christophe, and Zimmer, Bruno (eds.), ICRC/Martinus Nijhoff, Geneva/Dordrecht, 1987. Politis, Nicolas, La neutralité et la paix, Hachette, Paris, 1935. Provost, René, International Human Rights and IHL, Cambridge University Press, Cambridge, 2002. Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes, Clarendon Press, Oxford, 1997. Rieff, David, A Bed for the Night: Humanitarianism in Crisis, Simon & Schuster, New York, 2002. Roberts, Adam, Humanitarian Action in War, Aid, Protection and Impartiality in a Policy Vacuum, Oxford University Press, New York, 1996. Rosas, Allan, The Legal Status of Prisoners of War, A Study in IHL Applicable in Armed Conflicts, Suomalainen Tiedeakatemia, Helsinki, 1976. Rossi, Ingrid, Legal Status of Non-Governmental Organizations in International Law, Intersentia, Antwerp/Oxford/Portland, 2010. Rousseau, Charles, Le droit des conflits armés, Pédone, Paris, 1983.

Selected Bibliography

357

Sandoz, Yves, L’application du droit humanitaire, Centre d’étude et de recherche de droit international et de relations internationales, Académie de droit international de La Haye, La Haye, 1986. ———, The ICRC as Guardian of IHL, ICRC, Geneva, 1998. Sandvik-Nylund, Monika, Caught in Conflicts, Civilian Victims, Humanitarian Assistance and International Law, Institute for Human Rights, Abo Akademi University, Turku/ Abo, 1998. Schachter, Oscar, International Law in Theory and Practice, Martinus Nijhoff Publishers, Dordrecht, 1991. Schindler, Dietrich, et Toman, Jiri, Droit des conflits armés, Recueil des Conventions, Résolutions et autres documents, CICR et Institut Henry-Dunant, Genève, 1996. ———, The Laws of Armed Conflict, Martinus Nijhoff Publishers, Dordrecht, 1988. Schoenholzer, Jean-Pierre, Nurses and the Geneva Conventions of 1949, ICRC, Geneva, 1957. Schultz, Erik, Civil Defence in International Law, Danish National Civil Defense and Emergency Planning Directorate, Copenhagen, September 1977. Servais, Olivier, The Military Medical Officer and the Geneva Conventions, International Committee of Military Medicine and Pharmacy, Liège, 1988. Smillie, Ian and Minear, Larry, The Charity of Nations: Humanitarian Action in a Calculating World, Kumarian Press, Bloomfield, 2004. Steffek, Jens and Hahn, Kristina, Evaluating Transnational NGOs: Legitimacy, Accountability, Representation, Palgrave Macmillan, Basingstoke, 2010. Steiner, Hillel, An Essay on Rights, Blackwell, Oxford, 1994. Szazi, Eduardo, NGOs: Legitimate Subjects of International Law, Leiden University Press, Leiden, 2012. Thirlway, Hugh, International Customary Law and Codification, Sijthoff, Leide, 1972. Thoolen, Hans, and Verstappen, Berth, Human Rights Missions, A Study of the FactFinding Practice of Non-Governmental Organizations, Martinus Nijhoff Publishers, Dordrecht, 1986. Villiger, Mark E., Customary International Law and Treaties, Martinus Nijhoff, Dordrecht, 1985. Visman, Emma, Unneutral Services, Neutrality and Impartiality of Humanitarian Assistance in Situations of Internal and International Armed Conflict, University of Essex, Essex, 1996. Watkin, Kenneth, “21st Century Conflict and IHL: Status Quo or Change,” in Michael Schmitt and Jelena Pejic, International Law and Armed Conflict: Exploring the Faultlines, Essays in Honor of Yoram Dinstein, Martinus Nijhoff, Leiden, 2007, pp. 265–296. Weiss, Thomas G., Humanitarian Intervention, Ideas in Action, Polity, Cambridge, 2007.

358

selected bibliography

Welch, Claude Jr. (ed), NGOs and Human Rights: Promise and Performance, University of Pennsylvania Press, Pennsylvania, 2001. ———, Protecting Human Rights in Africa: Strategies and Roles of Non-Governmental Organizations, University of Pennsylvania Press, Pennsylvania, 1995. Werner, Auguste-Raynald, La Croix-Rouge et les Conventions de Genève, Analyse et synthèse juridiques, Georg & Cie, Genève, 1943. West, Katarina, Agents of Altruism, The Expansion of Humanitarian NGOs in Rwanda and Afghanistan, Ashgate, Aldershot/Burlington/Singapore/Sydney, 2001. White, Lyman C., International Non-Governmental Organizations, Their Purposes, Methods, and Accomplishments, Rutgers University Press, New Brunswick, 1951. Willets, Peter (ed), The Conscience of the World: The Influence of Non-Governmental Organisations in the UN System, Hurst and Co, Oxford, 1996. ———, Non-Governmental Organizations in World Politics: The Construction of Global Governance, Routledge, London/New York, 2010. ——— (ed.), Pressure Groups in the Global System, The Transnational Relations of Issue-Orientated Non-Governmental Organizations, Frances Pinter, London, 1982. Zimmermann, A., C. Tomuschat, and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice, A Commentary, Oxford University Press, Oxford, 2006.

2.2

Articles and Contributions to Collective Works

Abi Saab, Georges, “The 1977 Additional Protocols and General International Law: Some Preliminary Reflexions”, in Delissen, Astrid J. M., and Tanja, Gerard J. (eds.), IHL of Armed Conflict, Challenges Ahead, Essays in Honour of Frits Kalshoven, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, pp. 115–126. ———, “La coutume dans tous ses états,” dans Le droit international à l’heure de sa codification, Etudes en l’honneur de Roberto Ago, Giuffre, Milano, 1987, pp. 53–66. ———, “Le renforcement du système d’application des règles du droit humanitaire,” Revue de droit pénal militaire et de droit de la guerre, 1973, pp. 223–240. ———, “Les mécanismes de mise en œuvre selon les Conventions de Genève de 1949,” Revue générale de droit international public, 1978, pp. 104–120. ———, “Les sources du droit international: un essai de déconstruction,” dans Boutros Boutros-Ghali (ed.), Le droit international dans un monde en mutation: Liber Amoricum en hommage au Professeur Eduardo Jiménez de Aréchaga, Fundacion de cultura universitaria, Motevideo, 1994, pp. 29–49. ———, “The concept of ‘war crimes’,” in Sienho Yee and Wang Tieya, International Law in the Post-Cold War World, Essays in memory of Li Haopei, Routledge, London, 2001, pp. 99–118. ———, “The Development of International Law by the United Nations”, Revue égyptienne de droit international, Vol. 24, 1968, pp. 95–103.

Selected Bibliography

359

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Cheng, Bing, “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?,” Indian Journal of International Law, Vol. 5, 1965, pp. 23–112. Chetail, Vincent, “The Contribution of the International Court of Justice to IHL,” International Review of the Red Cross, No. 850, June 2003, pp. 235–269. Chibundu, Maxwell O., “Making Customary International Law Through Municipal Adjudication: A Structural Inquiry,” Virginia Journal of International Law, Vol. 39, 1998–1999, pp. 1069–1150. Christenson, Gordon A., “Jus Cogens: Guarding Interests Fundamental to International Society,” Virginia Journal of International Law, Vol. 28, 1987–1988, pp. 585–648. Clapham, Andrew, “Human rights obligations of non-state actors in conflict situations,” International Review of the Red Cross, Vol. 88, No. 863, September 2006, pp. 491–523. ———, “Human Rights,” in E. Wayne Nafziger and Raimo Väyrynen (eds.), The Prevention of Humanitarian Emergencies, Palgrave, Basingstoke, 2002, pp. 232–252. ———, “Responsibility to protect: ‘some sort of commitment’,” in Vincent Chetail (ed.), Conflicts, security and cooperation: liber amicorum Victor-Yves Ghebali, Bruylant, Bruxelles, 2007, pp. 169–192. ———, “Rights and Responsibilities: a Legal Perspective,” in Oliver Jütersonke and Keith Krause (eds.), From Rights to Responsibilities: Rethinking Interventions for Humanitarian Purposes, PSIS, Geneva, 2006, pp. 61–85. ———, “The ‘Jus Cogens’ Prohibition of Torture and the Importance of Sovereign State Immunity,” in Marcelo Cohen, Promoting Justice, Human Rights and Conflict Resolution through International Law: “Liber Amicorum” Lucius Caflisch, Martinus Nijhoff, Leiden, 2007, pp. 151–169. Comité International de la Croix-Rouge, “Activités de protection et d’assistance du CICR dans les situations non couvertes par le droit humanitaire,” Revue internationale de la croix-rouge, janvier–février 1988, Annexe No. 1. ———, “Assistance spirituelle et droit international humanitaire,” Revue internationale de la croix-rouge, No. 683, novembre 1975, pp. 683–685. ———, “Commission d’experts chargée d’examiner la question de l’assistance aux détenus politiques,” Revue internationale de la croix-rouge, No. 414, juin 1953, pp. 440–448. ———, “Note technique: La Croix-Rouge et son rôle d’auxiliaire des services de santé militaire,” Revue internationale de la croix-rouge, No. 741, mai-juin 1983, pp. 143–145. ———, “Réunion des organisations non gouvernementales,” Revue internationale de la croix-rouge, No. 636, décembre 1971, p. 733. ———, “Table ronde sur le statut du personnel et des volontaires des organisations internationales et nationales dans les actions humanitaires,” Revue internationale de la croix-rouge, No. 766, juillet–août 1987, pp. 454–456. ———, “Un statut international spécial pour le personnel de protection civile,” Revue internationale de la croix-rouge, No. 526, octobre 1962, pp. 477–501.

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Kolb, Robert, “Nouvelle observation sur la détermination de la personnalité juridique internationale,” Zeitschrift fur offentliches Recht, 2002, pp. 229–241. ———, “Selected Problems in the Theory of Customary International Law,” Netherlands International Law Review, Vol. 2, 2003, pp. 119–150. Kombos, Costas and Hadjisolomou, Maria, “The Traditional Distinction between International and Internal Armed Conflict: Legal Artefact or Legal Fact,” Mediterranean Journal of Human Rights, Vol. 10, No. 2, 2006, pp. 139–156. Korowicz, Marek St., “The Problem of the International Personality of Individuals,” American Journal of International Law, 1956, No. 50, pp. 533–562. Kovach, Hetty, “Adressing Accountability at the Global Level: The Challenges Facing International NGOs”, in Jordan, Lisa and Van Tuijl, Peter (eds.), NGO Accountability: Politics, Principles and Innovations, Earthscan, London, 2006, pp. 195–210. Krieger, Heike, “A Conflict of Norms: The Relationship between IHL and Human Rights Law in the ICRC Customary Law Study,” Journal of Conflict and Security Law, Vol. 11, 2006, pp. 265–291. Lalive Jean-Flavien, “International Organization and Neutrality,” British Yearbook of International Law, 1947, pp. 72–89. Lanord, Christophe, “The Legal Status of National Red Cross and Red Crescent Societies,” International Review of the Red Cross, No. 840, December 2000, pp. 1053–1077. Larissa, Gabriel, “The Red Cross—Red Crescent Movement: Is it a Model for Non-State Participation?,” in Van Boven, Theo, Flinterman, Cees, Grunfeld, Fred and Hut, Rita (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors, SIM Special No. 19, Utrecht, 1997, pp. 87–91. Lauterpacht, Hersch, “Decisions of Municipal Courts as Sources of International Law,” British Yearbook of International Law, Vol. 10, 1929, pp. 65–95. ———, “The Subjects of International Law,” in International Law Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works, Cambridge University Press, Cambridge, 1970, pp. 136–150. Levie, Howard S., “International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply,” American Journal of International Law, Vol. 67, 1973, pp. 693–710. Levie, Howard, “Prisoners of War and the Protecting Powers,” American Journal of International Law, Vol. 55, No. 2, April 1961, pp. 374–397. Lindblom, Anna-Karin, “Non-Governmental Organizations and Non-State Actors in International Law,” in Reinalda, Bob (ed.), The Ashgate Research Companion to NonState Actors, Ashgate, Farnham/Burlington, 2011, pp. 147–160. Lopez, Manuel, “Y a-t-il vraiment un intérêt d’adopter des Codes de conduite communs aux ONGs,” in Etikuma 99, Colloque européen de l’éthique humanitaire (ed.),

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Index accountability 240, 245, 341 Action contre la faim 9, 182 acts harmful to the enemy 102, 233, 321, 322 Addameer 339 advocacy 3, 346 Amnesty International 183, 186, 188 Barcelona Traction case 41 n. 172, 55 n. 246, 57 n. 259, 193 n. 74, 217 CARE 9, 183, 184, 311, 340 Caritas 185, 339 Catholic Relief Services 9, 185, 339 Central Agency for Prisoners of War 61, 62, 67, 161 Central Tracing Agency 61, 66, 178 chaplains 84, 125, 157, 306, 307 children 115, 218, 258, 264, 295 civil defense organisations 118, 122, 337 right to access protected persons 255 right to be protected 300, 307, 308, 309, 321 right to collect the dead 292 right to exert humanitarian activities  262, 335 right to provide relief to civilians  266 tasks 101, 102, 106, 122, 190 civilian hospitals 114, 301, 311, 321 civilian internees 79, 121, 165, 175, 254, 281, 284, 287 civilian population assistance to 85, 96, 115, 179, 180, 319 protection of 268, 308, 317, 322, 324, 329 role 77, 92, 168, 289, 292, 306 codes of conduct 2, 3, 183, 249 Concern 9, 183, 337 consent of the State party to the conflict practise 157, 186, 251, 252, 273, 279 requirement 89, 105, 110, 111, 119, 128, 130, 134, 135, 145, 150, 156, 162, 166, 246, 251, 260, 261, 265, 273, 305 Convention on the Recognition of the Legal Personality of International

Non-Governmental Organisations 12, 14, 15, 16 n. 27, 209 Convention on the Safety of Humanitarian Personnel 4 Council of Europe 16, 209, 254, 297, 298, 304, 308, 331, 333 crime against humanity 58, 268, 330 customary international law content 26, 239, 255, 283, 286, 288, 299, 318, 323, 326 definition 33, 43, 56 effect 218, 232, 245 elements. See State practise, opinio juris proofs 35, 45 deprivation of liberty 334 derogation 47, 49, 342 direct rights 193 n. 74, 224, 226, 229 displaced persons 247 n. 14, 255 n. 74, 258, 264 doctors 114, 115, 116 effectiveness 3, 129, 144, 185 efficacy 64, 68, 132, 135, 137, 139 emblem abuse of 233 protection 2, 74, 301, 315 right to use 66, 72, 73, 89, 94, 101, 103, 109, 111, 113, 115, 307, 309 erga omnes 55, 280, 291, 323, 327, 329, 331, 343 Federation 183, 184, 337, 345 definition 73 mandate 73 right to provide medical care 287 status 195, 202, 203, 204 freedom of movement 253 general principles of international law 32, 50, 55, 58, 59, 227 general principles of law recognised by civilised nations 31 n. 109, 56, 57 Geneva Call 9, 182, 339 grave breaches 30, 304

index HAP 235, 236 n. 300, 237 Health Unlimited 187, 191 hospital-ships 89, 108, 111, 117, 165, 166, 171, 187, 188, 306, 310 hostages 323, 332, 333 human rights 51, 240, 242 applicability to NGOs 4, 7 complementarity with IHL 17, 18, 19, 20, 25, 27, 36 n. 129, 215, 218, 220, 238, 239, 344 content 284, 298, 326, 327, 331, 334 protection of 44, 55 n. 243, 158 humane treatment 51, 225 n. 248, 283, 327 humanitarian assistance 3, 241 content 146, 147, 149, 235, 240 prohibition to impede 251, 252, 266, 268, 310 protection of objects/personnel 336 right to 242, 250, 270, 273, 274 humanitarian organisations. See impartial humanitarian body humanitarian principles 2, 3, 82, 146, 183, 192, 235, 238, 240, 243, 244, 248. See humanity, impartiality, neutrality, independence humanitarian principles 240 n. 319 humanitarian space 2, 3, 345 humanity 29, 60, 82, 98, 102, 148, 155, 183, 218, 337, 344 ICC 5, 30, 223, 267, 285, 300, 310, 317, 324, 327, 329, 330, 332, 334 ICRC definition 68, 145, 152, 161, 162, 171, 183, 184, 188, 191, 337 mandate 128, 189, 261, 274 right of initiative 70, 137, 157 right to access prisoners of war 253, 254 right to access protected persons 255 right to engage in family reunion 294 right to exert humanitarian activities  262 right to provide medical care 287 right to provide relief to civilians 266 right to provide relief to prisoners of war 280 status 195, 217, 221, 339, 344

381 ICRC Study on Customary International Humanitarian Law 28 n. 91, 31, 36 n. 131, 37 n. 134, 38 n. 139, 40, 43, 45, 46, 117, 276 ICTR 5, 324, 327, 329, 330, 332, 343 ICTY 5, 21, 23, 25, 30, 34, 38, 39, 57, 200, 221, 223, 283, 285, 318, 324, 325, 329, 330, 332, 333, 339, 342 impartial humanitarian body definition 64, 108, 115, 116, 118, 138, 147, 150, 156, 162, 337 mandate 157, 158, 162, 274, 278 organisations 8, 9, 64, 68, 80, 110, 131, 135, 143, 182, 183, 184, 185, 186 right of initiative 131, 247, 252 right to access prisoners of war 254 right to access protected persons 255 right to be protected 300, 310 right to exert humanitarian activities 262 right to provide medical care 287 right to provide relief to civilians 266 right to provide relief to prisoners of war 280 impartial humanitarian organisation. See impartial humanitarian body impartiality 60, 64, 68, 82, 98, 127, 135, 139, 142, 154, 162, 182, 183, 337, 344 independence 60, 61, 64, 78, 82, 98, 104, 118, 129, 136, 182, 199, 201, 204, 206, 237, 240, 242, 345 individual rights 193 n. 74, 196 n. 98, 224, 226, 228 interference 2, 139 n. 329, 247 n. 14, 248, 249 n. 23, 250 intergovernmental organisations 1, 144, 199, 201, 204 international criteria 16, 110, 115, 118, 122, 129, 132, 136, 139, 145 international armed conflicts 45 definition 20, 21 International Commission of Jurists 186 International Fact-Finding Commission 60 International Law Association 186 International Law Commission 8 international personality consequences 213, 228 definition 228

382 International Relief Union 61, 71, 75 International Rescue Committee 339 intervention 21, 149, 248, 252 jus cogens 47 n. 202, 56, 59, 149, 219, 280, 291, 323, 327, 329, 331, 341–342 lex specialis 19 Maison Shalom 338 Médecins sans Frontières 4, 9, 182, 184, 185, 191, 214, 244, 276, 312, 337, 340 medical personnel 74, 77, 81, 191, 303, 304, 321, 323 freedom of movement 260 organisations 111 protection 302, 304 right to access protected persons 255 right to be protected 300, 306, 310, 321 right to collect the dead 292 right to exert humanitarian activities 262, 335, 336 right to provide relief to civilians 266 medical services 163, 166, 171, 191, 309 military necessity 260, 265, 269, 279, 309 mines 6, 63, 72, 73, 78, 138 Mines Advisory Group 9, 182 ministers of religion 286 missing persons 67, 70, 147, 157, 178, 262, 300 modern custom 33, 35 murder 324 mutilation 323, 329 National Societies definition 73, 93, 141, 143, 164, 168, 337 freedom of movement 260 mandate 84, 111, 179, 279 organisations 71, 108, 109, 118, 122, 143, 144, 163, 166, 171, 183, 184, 185, 187, 189, 191, 337, 343 right of initiative 247, 249 right to access protected persons 255 right to collect the dead 292 right to engage in family reunion 294 right to exert humanitarian activities 262 right to provide medical care 287

index right to provide relief to civilians 266 right to provide relief to prisoners of war 280 status 195, 204, 205, 206, 207 natural disasters 73, 75, 84, 149 n. 397, 242 n. 327, 264 neutrality 60, 68, 82, 98, 132, 144, 182, 183, 235, 237, 243 NGOs legal framework 3, 6, 8, 20, 195, 197, 207, 208, 213, 216, 217, 227, 245 right of initiative 247 n. 13, 250, 253, 341 non-discrimination 148, 151, 233 non-governmental quality 11 non-international armed conflicts 8 threshold 22, 23 non-profit 12, 15, 17, 236 non-State actors 197, 217 n. 207, 224, 244 n. 341, 246, 341, 344 nurses 112, 114, 115, 116 opinio juris content 261, 265, 279, 287, 291, 294, 300, 323, 326 definition 43, 46, 50, 214, 252 Order of Malta 88, 95, 132, 135, 185, 187, 188, 189, 191, 195, 209 Order of St. John of Jerusalem 88, 95, 187, 189, 190, 191 organisations assisting prisoners of war 64, 67, 159, 172, 173, 188 definition 161, 162, 163, 176 mandate 164 right to access prisoners of war 253 right to provide relief to prisoners of war 280 organisations assisting the protected persons 179, 180 organisations duly approved by the Parties to the conflict 175, 280 organisations engaged in the task of family reunion 177, 178, 294, 299 OXFAM  4, 9, 183, 214, 337, 339, 340 participation in hostilities 219, 317, 321, 322, 323 peacekeeping 7, 29, 316, 324

383

index peremptory norms 49, 52, 304. See jus cogens persistent objection 48, 54, 55 personnel participating in relief actions 115 Protecting Powers 62, 65, 68, 126, 129, 130, 137, 142, 160, 173, 176, 179 substitute 70, 152, 186, 278, 340 right of initiative 247 right to access prisoners of war 253 right to exert humanitarian activities 262 right to provide relief to civilians 266 right to provide relief to prisoners of war 281, 282 rape 58, 330, 331 rebel groups 3, 21, 23, 192, 337 recognition by State 76, 77, 81, 88, 91, 92, 104, 115, 131, 151, 159, 164, 166, 171, 195, 199, 207, 212, 213, 216 Red Cross and Red Crescent Movement 60, 81, 82, 89, 96, 145, 147, 148, 153, 183, 202, 203, 204, 238, 345 code of conduct 238 principles 237. See humanitarian principles refugee law 17, 27, 238 refugees 73, 264 relief personnel 116, 260, 279, 312, 315 right to be protected 310, 314, 317 relief societies 98, 159, 187, 188, 189, 337 definition 97, 118, 143, 160, 162, 170, 176, 180 mandate 172 references 170, 171 right of initiative 247 right to access and provide relief 252, 253, 255, 262, 266, 279, 280, 287 right to be protected 310 relief societies for the prisoners of war. See organisations assisting prisoners of war religious organisations 122, 162, 172, 173 definition 172, 173, 174, 180 mandate 175 right to access prisoners of war 253 right to provide relief to prisoners of war 281, 283 religious personnel 101, 125, 172, 337

right to access and provide relief 253, 255, 258, 262, 266, 280, 288, 335 right to be protected 300, 308, 321 right to collect the dead 292 remedy right to 223, 227, 229 respect and protect obligation 304, 311, 312, 314, 319, 320, 323 reunion of families 138 n. 326, 178, 296, 297, 299, 300 right to compensation 223, 226 right to engage in the task of family reunion 294, 297 right to offer services (right of initiative) 253 right to search for and collect the dead 294 security considerations 178, 179, 260, 261, 264, 265, 278, 299 sexual violence 323, 330, 331 social or cooperative organisations 177 sources of international law 31, 32 special organisations of a non-military character. See civil defense organisations Sphere project 238, 239 starvation prohibition 252, 268, 269, 271, 273, 277 State practise 33, 43, 44, 45, 46, 59, 182, 191, 192, 195, 265, 269, 272, 320, 339 content 29, 261, 265, 279, 286, 287, 291, 294, 300, 323, 326, 329, 330, 331, 333, 335, 336 definition 26, 33, 34 n. 123, 35, 36, 37, 38, 39, 43, 252 subjects of international law 49, 154, 181, 208 concept 196, 211 definition 213 individuals 194 surgeons 112, 113, 116 Tadic case 21, 23, 25, 26, 27, 30, 39 torture 51, 223, 331 traditional custom 35 treaty interpretation 86, 182 UNHCR 9, 135, 178, 200, 250, 256 n. 75, 258, 261 n. 113

384 United Nations law 15, 62, 324 practise 282, 290, 291, 293, 300, 304, 320, 327, 329, 331 role 136, 154, 242 status 29 n. 95, 135, 210, 211, 212 Vienna Convention on the Law of Treaties 47 n. 202, 49 n. 208, 86, 87 n. 2, 182 n. 6, 246 n. 4 voluntary aid organisations. See voluntary aid societies voluntary aid societies definition 80, 87, 88, 92, 93, 94, 118, 176 mandate 94, 156, 171 organisations 74, 91, 92, 95, 108, 109, 111, 115, 118, 122, 166, 167, 168, 173, 191, 337

index right to access protected persons 255 right to be protected 300 right to collect the dead 292 right to exert humanitarian activities  262 right to provide medical care 288 right to provide relief to civilians 266 war crime 151, 223, 267, 285, 301, 303, 310, 317, 319 World Council of Churches 183 World Vision International 337 World Wars First 65, 67, 79, 96, 159 Second 34, 62, 65, 66, 67, 79, 97, 128, 138, 159, 161, 167, 169, 172, 178, 189, 191, 342