|Law in Humanitarian Crises, Volume II : Access to Victims: Right to Intervene or Right to Receive Humanitarian Assistance? (ECHO)|
|Humanitarian Intervention and Humanitarian Assistance: An Echo from the Past and a Prospect for the Future|
|IV. Humanitarian Assistance|
The concept of "humanitarian assistance", as frequently used in international law, is in fact neither a legal concept, nor has the concept a well-defined meaning, scope and contents, although the principles which operate and which are applied within the framework of "assistance" are not alien to international (humanitarian) law and are, quite often, legal principles. In the context of our research and the two questions formulated above, it thus seems that there may be two situations in which humanitarian "assistance" may be invoked (as was stated under II., peace-time assistance or "emergency humanitarian relief operations" fall outside the scope of this contribution).
The first situation is a situation in which the 1949 Geneva Conventions and the Additional Protocols of 1977 to these Conventions are applicable. In those treaties the term "humanitarian assistance" does not appear and is not used, but the various principles involved - all with certain restrictions and in varying terms - are familiar to the international lawyer and are related to the regulation of "humanitarian actions and operations" (like health issues, food, or the supply of other forms of relief, like those mentioned in Article 23 of Convention IV or Article 70 of Protocol I) in order to alleviate the suffering of the victims of an armed conflict
Both States and the ICRC "or any other impartial humanitarian organizations" are addressed by the Conventions and Additional Protocols in this respect, "subject to the consent of the Parties to the conflict concerned".
Under international humanitarian law as laid down in those international agreements the provision that the High Contracting Parties to the Geneva Conventions will "respect and [...] ensure respect for the present Conventions", this is not to be interpreted as an authorization to intervene by force as this falls outside the scope of ius in bello.
It is not the intention to describe the various principles involved which operate within situations of armed conflict covered by international humanitarian law. What is important from a conceptual point of view is to recognize that humanitarian "assistance" used under international humanitarian law is in fact a description of a multitude and variety of legal principles belonging to international humanitarian law (ius in bello); a generic and fluid term without a specific legal connotation, scope and contents. It has nothing in common with the legal concept of humanitarian intervention.
The second situation where the term "humanitarian assistance" is quite often used, is a situation as referred to under III.1.- III.3. This is a relatively new use of the term "assistance" and it may be useful to enumerate the various manifestations of "humanitarian assistance" as they appeared in the Security Council's practice since the adoption of SC Res. 688.
For practical reasons this overview will be limited to the resolutions mentioned above.
The concept of "humanitarian assistance" appeared in various manifestations; some of the resolutions mentioned the concept of "humanitarian assistance" without further qualifications (SC Res. 767, SC Res. 794, SC Res. 819, SC Res. 836), others referred to "humanitarian relief assistance" or "humanitarian relief operations/activities", (SC Res. 794, SC Res. 814), or simply to the "delivery of humanitarian relief" (SC Res. 836) and "assistance" (SC Res. 688). In some resolutions not adopted under Chapter VII the element of "co-operation" between the State (SC Res. 688; Iraq) and with the United Nations, or with the various parties and factions on the one hand and the United Nations, its specialized agencies, intergovernmental and non-governmental organizations and the ICRC on the other, was stressed (SC Res. 767).
With regard to the manifestations of "humanitarian assistance" - the rather consistent used generic term by the Security Council -, various "types" of assistance may be distinguished.
In some resolutions the problems relating to "access" or obstruction to the delivery of humanitarian assistance were dealt with, like, inter alia in SC Res. 688 ("access to all those in need',), SC Res. 824 (access to "safe areas'') and SC Res. 836 ("obstruction " to the delivery of humanitarian assistance.
Other resolutions demanded the need for an urgent delivery of the humanitarian assistance to the civilian population (SC Res. 767) and indicated that impediments to such activities, in particular the delivery of food and medical supplies, would not be tolerated and are a violation of international humanitarian law (SC Res. 794, SC Res. 819).
The safety of the personnel engaged in the delivery of such humanitarian assistance (both UN personnel, intergovernmental and non-governmental as well as ICRC personnel) and the ensuing obligation to "take all measures necessary byby the target State and/or parties, was repeatedly stressed by the Security Council (SC Res. 794, SC Res. 814, SC Res. 819, SC Res. 824). SC Res. 836 indicated that this extended to so-called 'protected convoys".
Three resolutions contained language indicating that the humanitarian "assistance" also extended to operations relating to the protection and repatriation of refugees and resettlement of displaced persons (SC Res. 688, SC Res. 929, SC Res. 814), whereas another three resolutions were devoted to the creation of "safe areas" (SC Res. 819, SC Res. 824, SC Res. 836) in Bosnia and Herzegovina. It was demanded that those areas be given full respect by the warring parties, whereas the areas would be protected by UNPROFOR "with the agreement of the Governments contributing forces" (SC Res. 836).
It follows from this enumeration that the scope and limits of the concept of humanitarian assistance have not been fully defined. Under the rather recent enforcement measures of the Security Council various manifestations of humanitarian assistance have appeared; sometimes already existing under international humanitarian law, sometimes hitherto unknown in international law.
The concept of humanitarian assistance is still developing and it may still be too soon to draw firm conclusions about possible new manifestations of "assistance". It is, however, beyond any doubt that the concept offers promising prospects for the future.