A quick glance at the United Nations (UN) Charter shows that human rights are not protected by the collective security system since there are only mentioned in article 1 (enumerating the purposes of the UN) and article 55 (belonging to the UN co-operation system). “The Charter clearly distinguishes between action taken to restore and maintain international peace (…) and action taken to create the conditions of stability and well-being necessary for peaceful and friendly relations among States”. Indeed human rights, at the time of the drafting of the Charter, were considered as domestic matters protected from external interference by article 2(7) and by customary international law. However, the analysis of practice reveals that violations of human rights are more and more frequently and specifically discussed and even sometimes condemned by UN bodies.
Astoundingly though, the Security Council (SC) has no special powers concerning human rights and international humanitarian law, despite the reluctance of some countries like China and Zimbabwe, it has become involved in this realm and acted within the framework of the collective security system. Such a development can be explained by the change of armed conflicts’ nature: nowadays combatants do not fight only against combatants but also against the civilian population who becomes the direct target of attacks. The idiosyncrasy of the third generation of civil war has therefore encouraged the Security Council to become active.
Nonetheless, a closer analysis unveils that the protection of human rights in peacetime and warfare offered by the Security Council is rather weak and that today its only success is the provision of humanitarian assistance.
One could be surprised by such a statement since one could genuinely believe that it is easier to enforce rights then a concept which at first sight appears to be without legal basis. Indeed, as stated by René Jean Dupuy: “les droits de l’homme relèvent de l’argument juridique, l’assistance invoque un sentiment d’humanité”. In addition, whereas human rights are of inter-State concern, humanitarian assistance is usually regarded as being classically within the realm of non-governmental organisations (NGOs).
The separation of these two notions implies that a right to humanitarian assistance does not exist and hence it cannot be invoked in order to alleviate people’s suffering during warfare. In fact, these two terms stem from different philosophies. In the first case, people’s rights should not be disregarded and in the latter one, these violations are more or less tolerated but should not attain a certain threshold. This solution is usually used when it appears impossible to end violations of human rights. That explains why humanitarian assistance is considered as a substitute to a policy incapable of protecting human rights during war time.
The Security Council when confronted with the civil war in the Former Yugoslavia used both strategies. On the one hand it condemned the violations but since a military intervention in order to enforce its resolutions was rejected by the majority of its members, its requests were never listened to. On the other hand the Security Council decided to provide humanitarian relief to the civilian population and condemned the warring parties attacking the humanitarian convoys and personnel. Can thus humanitarian assistance be considered as a right or is it only a (surrogate) policy without any legal basis?
The right to humanitarian assistance has a twofold meaning:
- the victims’ right to be helped; and
- the organisations’ and States’ right to assist the victims.
This distinction may sound slightly senseless in particular when one thinks in terms of accessibility but legally, it changes the beneficiaries and the dutyholders of that right.
In a first part, I would like to analyse the Security Council’s resolutions pertaining to human rights violations which occurred in the Former Yugoslavia and try to find the legal basis of its actions. In a second part, the emphasis will be put on the existence of the right to humanitarian assistance and the consequences of such an existence.
The Security Council and violations of human rights: a policy which failed in the Former Yugoslavia
What kind of human rights violations were condemned by the Security Council during the Yugoslav conflict?
The fighting that followed the break-up of Yugoslavia resulted in serious infringements of international humanitarian law and human rights. Most of them, though not all, were mentioned and sometimes condemned by the Security Council which acted in accordance with its UN-Chapter VII powers.
Analysis of the resolutions
The great majority of the Security Council’s resolutions pertaining to human rights violations can be put under four headings:
- the right to life and freedom from torture and inhuman/degrading treatment: The first concern expressed by the Security Council in resolutions 713 and 721 dealt with the “natural” consequence of any armed conflict: “the heavy loss of human life”. It is only after a certain period of time that the Security Council started to be more specific and refered to special kinds of deprivation of the right to life or of the freedom from torture and inhuman/degrading treatment: “mass killings” (resolution 780), “rape” (resolutions 798 and 827…). Still the Security Council remained vague unlike the General Assembly which mentioned “murder” (resolution 49/10), “torture” (resolution 49/10), “torture and beatings” (resolution 49/196), thus using legal terms usually linked to international conventions. The same holds true when it came to the laws of war: the Security Council preferred to be general (“siege”, “attack on non-combatants”, “terror”) whereas the General Assembly especially in resolution 49/196 was more explanatory “indiscriminate shelling and besieging of cities and civilians areas” or “systematic terrorisation and murder of non-combatants”. This once again attested that the transgressions pointed at by the Security Council remained general and was not willing to condemn particular breaches of international human rights.
- ethnic cleansing: eight months after having passed its first resolution on the Former Yugoslavia and on the violations of human rights and humanitarian rights, the Security Council mentioned the “practice of ethnic cleansing” in resolution 771§2. In this instance the Security Council went into greater details and pointed at “mass forcible expulsion”, “deportation of civilians”, “discriminatory practice” or the “protection of minorities” (see resolution 757 for example). However the Security Council never referred to particular situations on the ground like Tovarnik or Podlapac where the UN peace-keeping force (UNPROFOR) had to deal with such practice. Here again, it was remarkable that the Security Council never referred to the word “genocide”, although it would have been correct in the framework of the civil war in the Former Yugoslavia. The main reason seemed to be that “genocide” was a legally connoted term which refers to the 1948 the Convention on the Prevention and Punishment of the Crime of Genocide and that, in pursuance of article VIII of the later, it was empowered to resort to its Chapter VII powers. However, as it will be discussed in part IC, the Security Council preferred to trigger directly its chapter VII powers by declaring that the given situation amounted to a threat to the peace depicted in article 39 of the UN Charter. In addition, speaking about “genocide” would not have been diplomatically welcomed since the Security Council tried to solve peacefully the conflict and to negotiate with all warring parties. On the other hand, the General Assembly could afford to be more straight forward in its resolutions and hence expressly equated some practice with “genocide and crimes against humanity” (resolution 48/98) and even declared that some peoples were “threatened with virtual extermination” (resolution 49/196). Such harsh words and expressions, were never adopted by the Security Council who preferred to stick to the terminology “ethnic cleansing”, redolent of international humanitarian law.
- the right to adequate standard of living and the right to food: This right was not as such mentioned in the Security Council’s resolutions but can be derived from many other expressions used by this body. The right which seems to draw the Security Council’s attention is the delivery of food and medical supplies. Indeed a dozen of resolutions deals with the right to unimpeded access and delivery of materials for basic needs, thus illustrating that the Security Council was concerned with the health and living conditions of the civilians and combatants. It also referred to the public utilities, water, electricity, fuel and communication system (resolutions 859 and 900) thereby being as specific as the General Assembly could be in its own resolutions. Consequently, the right to adequate standard of living and the right to food appeared to be the ones moving the Security Council and pushing him to react to a desperate situation.
- freedom of movement: This right was specified as such in resolution 900 but was implied when it pertained to refugees, especially “displaced and returned persons” and people held in custody as combatants or as civilians (“imprisonment and detention centres”). The General Assembly in resolutions 48/98 and 49/10 recalled “the right of all refugees and displaced persons to return voluntarily to their homes in safety and dignity”.
The analysis of the Security Council’s resolutions brings to light that this body concentrates on certain aspects and principles of international human rights and humanitarian law and that the language it adopted was very cautious in order not to looses its chance to peacefully solve the ongoing conflict. Consequently it demonstrates that the Security Council was not the appropriate organ to condemn all breaches of international human rights and humanitarian law.
International human rights or international humanitarian law?
International human rights
- First, it should be kept in mind that international human rights still apply during an armed conflict as posited in paragraph 1 of resolution 2675(XXV) and as declared during the XXIst conference of the ICRC in 1969. For the minimalist school of thought, only the non-derogable rights are to be abide by the States party to the conflict. However hardly any reference to “international human rights” as such can be found in the Security Council’s resolutions; only resolutions 757 and 787 mentions “the effective protection of human rights and fundamental freedoms“. This is in clear contrast to the General Assembly’s resolutions which refers to “the human rights of the Bosnian people” (resolution 48/98) or to the “massive, gross and systematic violations of human rights” (resolution 49/10) and recalls that UN Member States “have an obligation to promote and protect human rights and fundamental freedoms” (resolution 50/193).
- The same holds true when it comes to the legal bases used by both organs in order to gauge human rights infringements. Whereas the Security Council did not refer to any international convention, the General Assembly cited in resolutions 50/193 and 49/196 almost all relevant international human rights agreements and moreover in resolution 50/193 recalled States to “fulfil their obligations they have under the human rights instruments to which they are party”.
- The right to life is stated in article 6 of the International Covenant on Civil and Political Rights (ICCPR), freedom from torture and inhuman and degrading treatment in article 7 of the ICCPR and in article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. Moreover it should be borne in mind that these rights are considered as being customary human rights.
- The prohibition of ethnic cleansing is enshrined in the Convention on the Prevention and Punishment of the Crime of Genocide. Therefore it was considered as applicable according to the commission of experts set by resolution 780. In addition such practice is in plain contravention of the non-discrimination principle as enunciated in article 2 of the ICCPR and in every human rights instrument.
- The right to adequate standard of living and the right to food are mentioned in article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Although the right to food is sometimes considered as an economic/social and thus programming right, it is specified as “the fundamental right which should be ensured at all times”.
- Freedom of movement is found in articles 9, 10 and 12 of the ICCPR..
- It seems that the Security Council trusts the Secretary General’s reports whereas the General Assembly preferred to invoke the basic instruments or referred to the work done by the Committee on the Elimination of Racial Discrimination concerning ethnic cleansing (resolution 49/10), by the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the territory of the Former Yugoslavia (resolution 50/193) or by the Commission on Human Rights (resolution 50/193).
International humanitarian law
- On the other hand, the Security Council has been more explicit when it has broached international humanitarian law since it mentions general international law as well as the 1949 Geneva conventions (GC). Its legal bases were nonetheless restricted to some instruments whereas the General Assembly in resolution 49/10 also cited the additional protocols (API and APII) to the Geneva Conventions.
- One of the major problem was to legally describe the conflict which followed the collapse of the Former Yugoslavia: was it a civil war? Was it an international armed conflict? In this doubtful situation, the Security Council therefore chose to apply general international humanitarian law and in particular the Geneva Conventions which mainly contain customary humanitarian law. Actually the parties to the conflict had agreed in 1992 to respect the Geneva Conventions and the first protocol and the one annexed to the conventions prohibiting mines and booby traps. On the other hand, the commission of experts set by resolutions 780 and 787 and composed of individual of high reputation not associated with governments considered as applicable law: namely Hague Convention IV, the Geneva Conventions and the first protocol, Hague convention 1954, convention on excessively injurious or indiscriminate weapons as well as the General Assembly’s resolutions 2444 (XXIII) 1968 and 2675 (XXV) 09/12/70. The direct consequence of the Security Council’s decision to constrain itself to the Geneva Conventions can be regarded as a precedent, thus discarding other international humanitarian agreements. This behaviour can be explained by the fact that the majority of the permanent members of the Security Council were reluctant to apply both protocols or had not ratified them.
- However it is remarkable that unlike for international human rights, the Security Council was very specific in its condemnation of international humanitarian law. Indeed a close analysis of the resolutions makes plain that none of the occurred breaches was left aside: not only were the principles of humanitarian law pointed at but also particular infringements.
The principles of humanitarian law:
- principle of distinction: prohibition of indiscriminate attacks (article 51 API, article 52 API);
- principle of humanity: humane treatment of prisoners of war (article 3 Hague IV, article 13 III, article 16 GCIII, chapter II GCIII, chapter III GCIII), prohibition of mass killings (article 3(1a) GC, article 75(2ab) API), prohibition of ethnic cleansing.
- some particular breaches:
- siege (AP I, article 17 GCIV, article 54 API);
- terror (article 33 GCIV, article 51 API);
- mass-rape and detention centres (article 14 GCIII, article 27 GCIV, article 76 API).
- the impeded delivery of food and medical supplies (articles 14 and 18 API, article 17 GCIV, article 55 GCIV, article 59 GCIV and following, article 70 API, article 15 GCIII, articles 51 and 72 GCIII).
My first conclusion is that the Security Council during the Yugoslav warfare paid more heed to violations of humanitarian law than to the ones of human rights. The Security Council does not only ascertain breaches of international human rights and humanitarian law like any body responsible for reviewing the situation in a given country. In fact the Security Council is not a permanent Committee or a Commission set in order to examine States’ compliance with international conventions but a political organ responsible for the maintenance of international peace and security.
What does the Security Council ask for ?
As said by Michel Foucault: “Le malheur des hommes ne doit jamais être un reste muet de la politique. Il fonde un droit absolu à se lever et à s’adresser à ceux qui détiennent le pouvoir”. Hence the Security Council condemned the violations, appealed for their immediate cessation and went even as far as to send peace-keeping forces but not as far as to intervene militarily on the field (humanitarian intervention).
A declaration condemning the violations
Usually, the first classical (diplomatic) step in order to put an end to infringements of public international law is to put high psychological pressure on the State. Informed about the multifarious infringements occurring in the Former Yugoslavia, the Security Council used two types of means in that respect:
- To use strong terms to describe these breaches: Generally encroachments to international humanitarian law were depicted in harsh terms: “widespread and flagrant violations of international humanitarian law” (resolution 827), “grave and intolerable situation” (resolution 844). The Security Council even spoke about “war crimes” in resolution 859. Ethnic cleansing was one of the violations which was qualified in the strongest terms: “abhorrent campaign of ethnic cleansing” (resolution 819), “totally unacceptable” (resolution 836) or “persistent and systematic campaign of terror” (resolution 941). The Security Council’s approach to “ethnic cleansing” was akin to the one adopted by the General Assembly in resolutions 48/98 and 49/10. The “magnitude of the plight of innocent victims” also drew the Security Council’s attention and strong wording and more particularly mass-rapes qualified as “acts of unspeakable brutality” (resolution 798);
- To formulate the condemnation in strong words: The Security Council had recourse to words like “condemns resolutely” (resolution 769), “expressing grave alarm” (resolution 771) or “strongly condemns” (the majority of its resolutions contains this expression), thus putting great pressure on the warring parties. This “deep concern” was expressed in almost all its resolutions since the breaches continued to be committed despite the Security Council’s numerous condemnations. The same kind of wording can also be found in the General Assembly’s resolutions: “condemns in the strongest terms all violations of human rights and international humanitarian law”, in resolution 49/196 for example.
It can be concluded that the Security Council clearly refused to tolerate such violations and hence that any State which acted in blatant contravention of international humanitarian law would face the Security Council’s strong condemnation and disapproval.
A request to stop the violations
Many of the Security Council’s resolutions summoned the warring parties to desist from violations of humanitarian law. The words “demands” and “requests” were very often used in order to remind the fighters that they should have complied with humanitarian law and should have ceased any breach.
One the one hand, these demands concerned infringements in general terms. In resolution 771 the Security Council “demands that all parties and others concerned in the Former Yugoslavia, and all military forces in Bosnia Herzegovina, immediately cease and desist from all breaches of international humanitarian law” and in resolution 900 it stressed “the importance it attaches to full compliance with international humanitarian in all its aspects in Bosnia Herzegovina”.
On the other hand, these requests focus on certain types of breaches and dealt with “forcible expulsions and attempts to change the ethnic composition of the population” (resolutions 757 and 752 for example), with displaced persons willing to return to their former homes (resolution 787) or with the closure of women detention camps (resolution 798).
To send peace-keeping forces
As the situation in the Former Yugoslavia worsened the Security Council decided to send peace-keeping forces (resolution 743). However the reason for this decision was not related to human rights or international humanitarian law violations but taken in the framework of the Security Council’s power to maintain international peace and security. It was meant to prevent the warring parties from fighting against each other and not to police any breaches of international public law. Even though, the Security Council decided to strengthen the role of the UNPROFOR in Sarajevo, it was not driven by any concern about the breaches of international humanitarian law as such, but by the fact that this city urgently needed humanitarian assistance (resolution 758). Here the question remains (and it is going to be discussed in part II) whether humanitarian assistance can be considered as a right and then as a breach of humanitarian law whenever it is obstructed by the warring parties or only as a policy lead by the Security Council.
The mandate of the UNPROFOR was enlarged and strengthened and its presence on the ground increased thanks to several resolutions (764, 776, 819, 824, 836, 941). In most cases the UNPROFOR had to assist humanitarian agencies and organisations in their work: protecting convoys of released detainees or helping them to bring humanitarian assistance to people in need in the so-called “safe-areas” (cities like Srebrenica for example). Whenever the Security Council adopted the verb “to determine” it was never in order to take enforcement measures but to add another mandate to the UNPROFOR and/or to deploy some more forces on the ground. Thus expressions like “determined to ensure the protection of the civilian population in safe areas” as used in resolution 836 or “determined to put an end” (resolution 941) only lead to mandate extension. It should nevertheless be borne in mind that resolution 836 allowed the UNPROFOR to resort to force in order to carry out its mandate. This resolution was never enforced: the UNPROFOR refused to use military force in order to accede to the place where humanitarian agencies’ succour was urgently needed. Subsequently humanitarian assistance convoys were still hampered by the warring parties.
A threat to intervene to stop these violations
Thereby the peace-keeping forces sent to the Former Yugoslavia were close to become enforcement troops. However their mandate was not to cease human rights or humanitarian law infringements but to cease the fighting between the three main ethnic groups. Despite the report of the Secretary General asking for some stronger reply to all these transgressions and to the practice of ethnic cleansing in particular, the Security Council never took the decision to intervene militarily in order to put an end to violations of human rights and humanitarian law though certain resolutions can be considered as a threat to use force. Indeed resolution 761 states that “in the absence of co-operation, the Security Council does not exclude other measures to deliver humanitarian assistance to Sarajevo and its environs” and resolution 770 “determined to establish as soon as possible the necessary conditions for the delivery of humanitarian assistance wherever needed in Bosnia Herzegovina”, thus creating the impression that the Security Council was poised for sending enforcement forces.
The reality is nevertheless different in spite of some authors’ opinion who consider that “it is no longer tenable to assert that whenever a government massacres its own people or a State collapses into anarchy international law forbids military intervention altogether” or that “offences against human rights are a matter of international concern, but they do not trigger intervention except perhaps when outrageous conduct shocks the conscience of mankind”. Can then the violations which happened in Bosnia Herzegovina be regarded as one shocking the conscience of mankind? In my opinion, it seems that military intervention in this particular case would have been legitimate albeit not legal since practice and opinio juris are not consistent in that regard.
The response offered by the Security Council to the Yugoslav crisis seems to be very weak in comparison to the heinous crimes committed. It is necessary now at this juncture to analyse the merit of the Security Council’s interference since it may help us to understand why the Security Council failed to protect human rights and why it eventually turned to humanitarian assistance.
Legal bases triggering the Security Council’s ability to act
The legal bases for the Security Council to interfere in the Yugoslav conflict seems to be the UN Charter. However some other bases might be found in international law.
“Threat to peace and international order”: article 39 of the UN Charter
In its first resolution (713) concerning the situation in the Former Yugoslavia, the Security Council stated that the present conflict amounted to a “threat to international peace and security” and thus triggered its chapter VII powers.
The reasons to intervene
The legal literature gives four reasons for the Security Council to declare that a situation amounts to one as described in article 39.
- The transboundary element: When one thinks about a crisis which threatens international peace and security, (s)he thinks about its international consequences, i. e. its effects on neighbouring countries (spill-over effect). Though this viewpoint is sometimes not tenable since some internal crises can have international consequences in the long run, it is however praised by some countries members of the Security Council. For instance the travaux préparatoires of resolution 688, concerning Iraq, indicates that the majority of the Security Council members considered the refugees influx to Turkey and Iran as the predominant factor for the international community to intervene in the Iraqi domestic affairs. In the Yugoslav case, it appears that the “consequences for the countries of the region” (resolutions 713 and 721) pushed the Security Council to act in that particular case. Indeed the Representative of Bosnia Herzegovina when requesting the Security Council to operate within the framework of its chapter VII powers, emphasised the potential danger for international peace and security. However, none of the ensuing resolutions refers to the flood of refugees or any transboundary element. Consequently, it seems that the Security Council has eventually discarded this approach and that even a purely internal crisis can be regarded as an article 39 situation.
- No responsible State: Other authors believe that the Security Council can only intervene whenever the State in which the crisis or feud takes place, is incapable of managing the situation, of setting an end to it. In other words, there is no answerable State and the international community has to replace it, taking decisions in its stead. Such a position is nevertheless not tenable in the Yugoslav case since the Security Council was invited by the Permanent Representative of Yugoslavia who addressed a letter to the President of the Security Council, to meet and discuss the current crisis. In addition, before adopting resolution 713 the Security Council listened to the Foreign Minister of Yugoslavia. Consequently some authors’ opinion of a breakdown of the State falls short in the instant case. It is nonetheless true that during the armed conflict in Bosnia Herzegovina, it seemed sometimes that the Bosnian rules were unable to cope with the situation, especially in the Republic of Srpska.
- Violations of human rights and humanitarian law: In the past, situations characterised by grave violations of human rights whose destabilising effects where circumscribed to a single State, were approached by the Security Council in terms of maintenance of international peace and security but never ever considered as article 39 situations. Nowadays, when violations of human rights (here to be regarded as including humanitarian law as well) are grave and systematic, then they can be considered as a “threat to the international peace and security”. Indeed, as declared by the Security Council on a meeting on the 31st of January 1992, humanitarian instability can be a source of international peace and security. During the debate preceding the Security Council decision to intervene in the Yugoslav conflict, some States like Equator for example, noted that the humanitarian situation shocked humankind. In addition some scholars like Bettati interpret resolution 688 as a precedent attesting the direct link between international peace and security and mass violations of human rights. The analysis of the first Security Council resolutions seems to confirm such a position since resolutions 713 and 721 mention the “heavy loss of human life” as one of the reason to intervene. However, the second part of the sentence refers to the transboundary element: “the consequences for the countries of the region” so that Bettati’s analysis of the 688 resolution cannot be applied to the Yugoslav case; at least not at the inception of the conflict. Indeed as time elapses, it appears that transgressions of human rights and humanitarian law are the major reasons for the Security Council to act under chapter VII (see resolution 770 for example). The fact that the Security Council invokes breaches of international human rights seems to be at odds with the perfunctory review of human rights violations as demonstrated in part IA. “A growing number of influential governments take the view that there is a threshold beyond which inaction is impermissible”. In its annual report for 1991 on the work of the UN, Javier Peres de Cuellar wrote: “it is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights can be massively or systematically violated with impunity… The case for not impinging on the sovereignty, territorial integrity and political independence of States is by itself indubitably strong. But it would only be weakened if it were to carry the implication that sovereignty, even in this day and age, includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection.”
- An international armed conflict: It is worth being noted that till resolution 749 the Security Council speaks about Yugoslavia as a State, showing thus that it considers the conflict circumscribed to a single State. However with resolution 749 the Security Council makes the difference between Yugoslavia and Bosnia-Herzegovina. Despite this differentiation the Security Council still declares that the situation amounts to a threat to the international peace and security and not as an aggression. In some resolutions it is nonetheless recognisable that the Security Council takes a different approach. For instance resolution 752 requests that “all forms of interference from outside Bosnia-Herzegovina (…) cease immediately”, indicating thus that the conflict has become an international one and resolution 787 unambiguously summons States to respect the territorial integrity of Bosnia-Herzegovina. Hence some scholars believe that the Security Council acted because the situation actually amounted to an aggression. Such a position is also held by the General Assembly.
Discretionary power of the Security Council
Actually, the Security Council is not compelled to give the reason why it acts under chapter VII: it only has to declare that the situation, at least, threatens the international peace and security. Indeed the travaux préparatoires pertaining to chapter VII show that the drafters urged for a great flexibility in that field so that the Security Council would be able to tackle any kind of situation disturbing the international peace and security. Indeed, as a political body which is assigned to maintain peace and order on the international level, a great appreciation is expected in that regard. It does not intervene on a regular basis, whenever one could expect him to take steps; on the contrary, it selects situations which it deems to be interesting enough to be dealt with. In addition it is not compelled to apply uniform criteria in apparently likewise situations.
For example, Condorelli states that though the justifications given by the Security Council may appear to be made out of little pieces of everything, they are necessary because they create a precedent. Hence even when its vindication appears to be on a shaky ground, nothing prevents the majority of the Security Council to declare that there is a threat to international peace and security.
In other words, “ce qui compte, ce n’est pas tant l’objet à l’origine de son intervention que la gravité de l’atteinte à la sécurité; c’est davantage un critère d’atteinte à la sécurité qu’un critère d’objet. Peu importe l’origine des atteintes à sécurité, il faut que la perception des faits qui sont en cause soit suffisamment aiguisée pour que l’action du Conseil se trouve justifiée”.
Assuredly the Security Council had the powers to put an end to violations of human rights: chapter VII once triggered bestows the Security Council enforcement powers.
Humanitarian law, international treaties, customary law
Although the legal bases clearly appear to be found in the UN Charter, it is however interesting and worth pondering on other possible bases especially on customary law or instruments pertaining to human rights and humanitarian law.
First, by recalling numerous international legal bases, it seems that the Security Council derives its powers therefrom. However, such a contention is wrong because the Security Council reminds them to the warring parties and do not mention them as legal bases. Walzer, interestingly, argues that “governments and armies engaged in massacres (…) are guilty, under the Nuremberg code of “crimes against humanity”.
Second, one could believe that the Security Council would act under article VIII of the Convention on the Prevention and Punishment of the Crime of Genocide since the campaigns launched by the various warring parties amounted to genocide (see part IA). However, as explained in part IB, the Security Council apparently refused to intervene on that basis because it would have compromised its chances to solve the armed conflict diplomatically.
A third way to intervene in Bosnia Herzegovina would have been to invoke article 1 of the Geneva Conventions which obliges signatories States to ensure the application of these agreements in all circumstances. By recalling these instruments, does the Security Council signifies that States should do all feasible to ensure the warring parties’ compliance with it? Or even does it signifies that it can itself intervene? In addition, article 89 of API which was ratified by the parties to the conflict but not taken into account by the Security Council in its numerous resolutions pertaining to the situation in the Former Yugoslavia encourages States to act, individually or collectively and in co-operation with the United Nations and in pursuance of the UN Charter, in order to ensure the warring parties’ compliance. However, no means is suggested to States: classical (diplomatic, psychological, economic) means or military intervention? Mourgeon propounds that there is no right even implied to intervene because such a right would be too derogatory to the principle of the prohibition of the use of force. In the event that the hostilities in the Former Yugoslavia are considered as an internal strife, Additional Protocol II applies and its article 3§2 stipulates that intervention in “the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs” is strictly forbidden. Hence if one sees the conflict as an internal one, no State, individually or collectively can intervene in order to stop encroachments to human rights and humanitarian law.
According to Kouchner, no legal bases should be needed in order to succour people. He compares an armed conflict in a given country with a fire which needs to be extinguished or an ill person who needs help and argues that whenever such a situation arises, the fire brigade or the rescue team do not ponder on whether it is worth intervening or not and do not check the patient’s curriculum vitae. Hence the Security Council should not discuss the worthiness of an intervention. Nonetheless it should be borne in mind that “le délit de non-assistance à personne en danger n’habite pas les relations interétatiques” even if François Mitterrand on the 30th May 1989 declared during a CSCE conference that “l’obligation de non-ingérence s’arrête à l’endroit précis où naît le risque de non-assistance”.
Can one see here an emerging principle of customary law? Or is it only a political thought without any legal reference? Indeed many authors believe that humanitarian action is only a substitute to a proper political action, concluding that “l’assistance, petite sœur discrète –car purement factuelle et non juridique- de la protection, est l’une des voies ouvertes par le droit international humanitaire pour gérer l’activité belliqueuse”.
The Security Council and humanitarian assistance: a substitute policy or a right?
In order to answer these questions, the different terms used in the legal literature and in the UN resolutions must first be defined. In a second point, the legal literature and the UN resolutions will be analysed. Then a closer look will be had on the consent of the State affected by the humanitarian situation since it is the corner stone of the problem. Finally, I would like to focus on the obligation to assist people in danger, on the so-called “devoir d’ingérence”.
What is humanitarian assistance?
After giving a first definition of humanitarian assistance, I will highlight its principles and see if they were applied in the Former Yugoslavia. It should be borne in mind that the undertaken humanitarian actions were praised by the UN Security Council (resolution 913 for example) and by the international community.
Definition of humanitarian assistance
- There are two different types of situations where humanitarian assistance might be invoked. The first one deals with the situations as described in the 1949 Geneva Conventions and the additional protocols. In this context, humanitarian assistance covers a multitude of different situations of intervention on the ground. The second type of humanitarian assistance is the one meant by the Security Council resolutions: “humanitarian assistance” (819 and 836), “humanitarian relief assistance” or “humanitarian relief operations/activities” (794) or “delivery of humanitarian relief” (836) and “assistance” (688).
- The ultimate goal of humanitarian assistance is to alleviate people’s suffering within a State, regardless of its roots (armed conflict, natural disaster…). Humanitarian assistance is usually carried out by private or/and public organisations who wish to save people’s life, to nourish them, to organise their transit, displacement or resettlement, in other words to sustain them in what has become their everyday life. On the contrary humanitarian intervention is more radical since it aims at suppressing gross and widespread violations of human rights.
- “Humanitarian assistance to the victims of disasters doubtless includes the provision of medical supplies, food, clothing, bedding and suchlike goods, as well as the required means of transport and the money to finance the purchase of all such supplies. Excluded are weapons, weapons systems, ammunition and other requisites for the conduct of hostilities (such as communications equipment) as well as money for these purposes (or that may reasonably be expected to be diverted to such purposes)”. Some might add that humanitarian assistance also covers protection from displacement, detention as well as from torture and other inhuman/degrading treatments or rehabilitation operations in cities. Hence humanitarian assistance covers a full range of different aspects (though not intellectual, cultural, religious or social) of human existence. Sometimes it has been considered by the parties as also “helping to uphold the morale of beleaguered communities”. Indeed by providing material humanitarian assistance, the organisations give a ray of hope to these people who then are ready to struggle, to fight against their opponents.
- A second characteristic is that humanitarian assistance is non-coercive and usually “carried out with the consent or at least acquiescence of the State concerned”. Here is the key difference with humanitarian intervention which is generally directed against the lawful authority in control of the country and which uses military as well as non-military measures in order to achieve its aim.
Principles of humanitarian assistance
In addition, in order to obtain the label “humanitarian”, the organisation providing assistance has to scrupulously respect and adhere to a number of basic principles. Some of them are written in the regulations of the NGOs whereas some others can be found in international humanitarian law instruments (article 18§2 of APII or article 70 for examples) or in General Assembly resolutions (43/131, 45/100, 46/182….).
Under humanitarian law, civilians have a fundamental right to be protected from attack, torture and other inhuman/degrading treatment. Humanitarian assistance introduces into hostilities respect for life and human dignity. It aims at humanising armed conflicts. The principle of humanity can be divided into two components:
- “Humanitarian assistance must not comprise any element that could contribute to the military effort”;
- “The distribution of aid must be prompted by the sole criterion of need”.
Humanitarian assistance can therefore never be imposed by humanitarian movements. As Kouchner puts it: ” l’humanitaire n’impose pas ses services. Nous n’intervenons jamais contre le gré des populations, des groupes, de la communauté qui souffrent”. He propounds that NGOs never impose their help to the victims but can it impose its will to the parties to a conflict which refuse access to the victims? The answer is clearly negative for Sommaruga. Indeed if the organisation would be obliged to use force, i.e. to kill or injure people in order to save the victims, the provision of humanitarian assistance would loose its meaning, its “raison d’être”. Such an operation is then called humanitarian intervention.
The second basic principle governing humanitarian assistance is impartiality: humanitarian movements should not make any discrimination based on race, nationality, religion, political opinions or any other similar criteria. However it does not mean equality of treatment. The sole criterion for the food and medical supplies distribution is people’s need (see article 70 API). It does not mean that humanitarian always reaches the most vulnerable groups. Impartiality is considered as the corollary of humanity. Since impartiality is “as much a matter of practice as of perception”, “it may be challenged daily by any of the parties”. Indeed they fear that relief supplies might be used by the other warring party and that hence they might contribute to the war effort.
This general comment can be applied to the armed conflict in the Former Yugoslavia. The delivery of humanitarian assistance was considered as an impediment to the opponents’ war aims because the avowed goal of the warring parties was ethnic cleansing, the disappearance of the other ethnic groups. For example, feeding the inhabitants of a besieged city was regarded as a highly partisan act so that the besiegers hindered the provision of humanitarian assistance in the so-called safe areas. “The inhabitants of many cities like Sarajevo have resisted much longer than they would have done without the relief effort”. Those engaged in delivery humanitarian aid were more or less identified to one side. In the Former Yugoslavia, it was relatively established that humanitarian movements focused their actions on the Muslim Bosnian population who was under constant threats and attacks from the Bosnian Serbs.
The third tenet governing humanitarian assistance is independence/neutrality. It signifies that humanitarian endeavour should not be integrated into a political process of linked with any use of the military power. It only serves the interests of all victims and the organisations should not get involved in controversies of a political, religious or ideological nature.
That is why Sommaruga advocates for a clear-cut distinction between humanitarian action and the political efforts in conflict resolution and the requisite military support: “ne confondons pas l’emploi de la logistique et l’emploi des armes. Une action militaire peut ne pas être une action armée” as summarised by Kouchner. Neutrality means abstaining from any interference in ongoing struggles between different groups.
Whenever the Security Council takes actions in the framework of chapter VII, it cannot be considered as a neutral party since it is a highly political body. Here lies one of the main problem of using peacekeeping forces as helpers of humanitarian organisations. Indeed it should be borne in mind that the UNPROFOR was summoned to create sufficient security conditions between Sarajevo and its airport for the delivery of humanitarian assistance (resolutions 758, 761, 764, 776) and then held responsible for sustaining the ICRC when so requested to protect the convoys of released detainees (resolution 776) for examples. UNPROFOR, a peace-keeping force linked to the political process of conflict resolution was used as a means to dispense humanitarian aid and seen as the “Armed Red Cross”. Consequently the warring parties were sometimes not able to make the difference between UNPROFOR mandate as a peace-keeping force and as a humanitarian organisation. According to this latter mandate, they were supposed to commission cargo places, to guard convoys and even sometimes to distribute the supplies.
Their action was nonetheless appraised because they proved “to be indispensable in securing respect for international humanitarian law and thus restoring the necessary security environment for the conduct of humanitarian activities”. They brought to the operations greater coherence and were consulted by the organisations “at every phase and at every level, in a spirit of complementary”. Indeed, the protection offered by UNPROFOR guaranteed that the assistance would reach the affected population and increased the likelihood of more assistance since donor States trusted the humanitarian movements.
Two problems related to the principle of neutrality need to be highlighted:
- It seems that sometimes the decisions taken by the UNHCR or the UN Secretary General not to provide any protection to the humanitarian societies hindered the delivery of humanitarian supplies to the affected population: the situation of the Bihac pocket exemplifies this problem;
- Humanitarian NGOs were assigned a collective security function: to protect the population of a given country.
Subsequently, the creation of a kind of an international and neutral police responsible for the protection of the staff of humanitarian organisations was suggested. This force should also be able to secure operations’ zones and if necessary, disarm the different factions. In addition, in order to assure its neutrality, it should be under the command of the Secretary-General.
From the foregoing a first conclusion can be drawn: it appears that humanitarian assistance is not a right but the outcome of certain organisations’ engagement and follows certain principles. This point of view is sustained by the fact that no international instruments pertaining to human rights refer to a right to humanitarian assistance. However, a closer look at international law indicates that such a right starts to exist independently of these organisations, an implied right.
A right to assist people in danger or a right to be assisted?
Indeed the right to humanitarian assistance in its two components may be derived from international human rights instruments as well as from UN resolutions.
A right derived or implied?
This right may be derived from the UN Charter, from the right to food and adequate standard of living or from international humanitarian law.
An implied right to humanitarian assistance?
Some authors argue that the right to humanitarian assistance find its sources in the UN Charter as well as in the Universal Declaration of Human Rights. The international responsibility for the freedom from wantcan be deducted from article 1§3 of the UN Charter. Moreover under articles 55 and 56, all Member States accept the legal obligation to co-operate with the UN in order to achieve the aims set up in article 1 of the Charter. Article 55C postulates that the UN will endeavours the effective and universal respect of human rights and fundamental freedoms. Since humanitarian assistance alleviate people’s suffering, it can be considered as the minimal action undertaken by Member States with the UN in co-operation to protect effectively human rights. Here we could find the basis for a right to humanitarian assistance in the sense of an obligation to assist people in need and hence a right to be assisted.
Worth being noted is the creation by General Assembly’s resolution 46/182 on the 19th December 1991 of the Department of Humanitarian Affairs (DHA). The impetus for the creation of the DHA came from Western governments, NGOs and other organisations worried about the inability of the international community to dispense effective humanitarian relief. It demonstrates the UN concern about recent crises and armed conflicts affecting the civilian population as well as the combatants. Does this increasing commitment reveal the existence of a right to humanitarian assistance? I would answer in the positive: it is one of the proof that humanitarian assistance is contemplated as a right to assist people but not a right to be assisted.
As a more general basis of international law, article 28 of the Universal Declaration of Human Rights (regarded by legal literature and by most States as customary international law) can be invoked to sustain the opinion that there is a right to humanitarian assistance. Indeed this provision links the right to life, to physical integrity and to an adequate standard of living with the right to effectively enjoy them. Here the right to humanitarian assistance would be the victims’ right to be assisted.
A right to humanitarian assistance derived from the right to food and adequate standard of living
The concern with food or freedom from hunger is expressed at least in the following contexts: safeguarding of the right to food in armed conflict, providing food for refugees, providing food for prisoners, international crimes involving deprivation of food, thus covering a wide range of situations where the right to food has to be protected. Moreover, “the Vancouver Declaration on Human Settlements, adopted and proclaimed by the UN Conference on Human Settlements in 1976, affirmed that adequate shelter and services were a basic human right and that, in striving to uphold that right, priority must be given to the needs of the poor, the homeless and the most vulnerable groups of society”.
As to the Universal Declaration on the Eradication of Hunger and Malnutrition, adopted by the World Food Conference in 1974 and endorsed by the General Assembly in its resolution 3384 (XXIX) of 17/12/1974, stipulates in article 12 that it is the common responsibility of the entire international community to ensure the availability at all times of adequate world supplies of basic foodstuffs by way of appropriate reserves, and therefore all States should co-operate in the establishment of an effective system of world food security. A similar thought can be deducted from the International Undertaking on World Food Security in 1974, in which governments “recognise that the assurance of world food security is a common responsibility of the entire international community.”
According to article 11 of the ICESCR, the right to food and to an adequate standard of living is a fundamental one. It can therefore be opposed to States without consent or convention and is valid in all circumstances. Furthermore no derogation to the rule is tolerated. In pursuance of this viewpoint humanitarian assistance as the action/obligation of supplying people with food can be presumed as a right and all the more as article 11 demands States to act “through international co-operation”.
The link between the right to food and the right to life allows us to come to the same conclusion since any encroachment to the right to food could result in death by starvation and as said by the Human Rights Committee, the right to life is “the supreme right from which no derogation is permitted even in times of public emergency which threatens the life of the nation”. More recently, the Human Rights Committee, in its General Comment on article 6 has broadened the term “right to life” which now encompasses “measures to eliminate malnutrition and epidemics”.
However such stances adopted by authors contenting that there is a right to humanitarian assistance derived from the UN charter of from resolutions of its organs do not adhere to States’ opinio juris, which constantly refuse to consider humanitarian aid or assistance even in emergency cases as an international obligation. For example the article 11 ICESCR flaw is that this international assistance is based on free support of the donors States. That is why the General Assembly’s and the Security Council’s resolutions can only encourage the international community to enhance its humanitarian support (GA resolution 49/196, SC resolutions 757, 761, 787…).
Consequently it appears that the right to humanitarian assistance can not be directly derived from the right to food and adequate standard of living. However, the link between these two notions are becoming tighter and tighter, it can be presumed that in the long run, a right to humanitarian assistance will be contemplated as, a least, an emerging rule of law. Furthermore it would concern the victims’ right to assist people, the right to be assisted.
A right derived from international humanitarian law
As seen in part IA2, international humanitarian law protects three sorts of right related to humanitarian assistance.
- the right to food supplies: This right is well protected by international humanitarian law; more than a survival right, a real right to food is provided by the Geneva Conventions and its annexed protocols. Article 55 of GCIV concerns the civilians whereas articles 26 and 51 of GCIII deal with prisoners of war. Furthermore articles 56 and 57 of GCIV go into greater detail concerning the right to food for the civilian population.
- the right to medical supplies: Article 55 generally stipulates that the Occupying power is under the duty to provide sufficient medical supplies to the civilian population. According to article 14 API, the Occupying power has to make sure that the civilian population is healthy and that there are sufficient medical supplies. Article 15 API obliges the Occupying power to assist civilian medical personnel when they carry out their duty. Concerning prisoners of war chapter III of GCIII is relevant as well as article 51.
- the right to clothing: this right is expressly mentioned in article 27 of the GCIII pertaining to prisoners of war. However such a right can be deducted from the provision concerning relief schemes and actions (articles 59 and 17 GCIV and article 70 API)
From the foregoing it is plain that a right to be assisted can be deducted from international humanitarian law.
The GA resolutions
The adoption of several resolutions by the General Assembly seems to attest that there is an opinio juris on the right to humanitarian assistance. However it is exactly the contrary. General Assembly resolutions 43/131, 45/100 and 46/182 only recognise a limited right to assistance to starving population and do not mention a right to humanitarian assistance as such . The proposed draft including a right to humanitarian assistance was rejected by the General Assembly, which shows that it was not ready yet to accept it. Hence the wording of the resolutions cannot attest that a right to humanitarian assistance exists.
According to resolution 43/131 and in pursuance of the principle of subsidiarity (§2), the State affected is the first one which has to react and dispense humanitarian assistance for its own people: initiative, organisation, co-ordination and carrying out are under its responsibility. In other words, humanitarian movements can only intervene when the State shows its incapacity to put an end to the situation. This inability can be either economic, physical or technical.
Hence it can be deducted that humanitarian societies intervene in a second stage when the State cannot play its role. Such a conclusion can only be drawn from a contextual interpretation and from the preamble which demands the international community to react promptly whenever such a distressful situation occurs. In pursuance of this viewpoint a right to assist people can be derived but not a right to be assisted so that the only beneficiaries are the relevant humanitarian movements and not the victims.
Most of the legal literature agrees on the consequence of these resolutions. Luca expresses the opinion that they are a first step towards the recognition of a right to be succoured but does not give any conclusive arguments. Corten and Klein argue that we are progressing towards the recognition of a right to assist civilian populations in need, a legal recognition of a right which already exists in practice.
The Security Council resolutions
The Security Council resolutions, unlike the General Assembly resolutions, reveal to be a more sound basis to argue that a right to humanitarian assistance is emerging in international public law.
Humanitarian assistance as a policy to restore peace
Today’s intergovernmental relations are based on a fundamental principle: the duty to co-operate for the sake of international peace and security and to promote general wealth and stability and economic progress throughout the world. It means that States have to endeavour peace and security by all possible means and it appears that one of them is humanitarian assistance. This position stems from the analysis of the Security Council’s resolutions during the hostilities in the Former Yugoslavia. Indeed resolutions 770 and 787 declares that “the provision of humanitarian assistance in Bosnia Herzegovina is an important element in the Council’s endeavour to restore international peace and security in the area”, thereby implying that humanitarian assistance is a policy but not a right. One can only agree with the following opinion: “l’aide humanitiare est désormais considérée par l’ONU comme un levier à part entière d’une stratégie de maintien/rétablissement de la paix”. Therefore these provisions are not really relevant for our query into the legality of the right to humanitarian assistance since they only approach humanitarian assistance from its political side.
A right derived from the resolutions themselves
A right to humanitarian assistance can be derived from the reading of the resolutions.
- First the Security Council decides to intervene in an armed conflict or in a given situation only if a right is violated, for examples right to be free form external aggression, international human rights… In the case of the Former Yugoslavia it appears that in some resolutions, the Security Council based its intervention on the fact that the humanitarian situation was disastrous. As Olivier Paye says, situations of non-assistance were considered as a threat to the international peace and security. Does it mean that there is a right to humanitarian assistance and that it has not been abide by the parties to the conflict? A positive answer can only be given in light of the following resolutions concerning Somalia for example.
- Second, the Security Council asks the parties not to impede the humanitarian convoys. Most resolutions of the Security Council put a strong emphasis on the “right to access” (which will be dealt with in part IIC2) and even requests in its resolution 770 the parties under its chapter VII powers to grant the ICRC and other competent humanitarian NGOs the right to access to camps, prisons and detention centres. Let us suppose that such a right exists, then it is a proof that a right to humanitarian assistance exists. Indeed, the whole point of having a right to access is to help people. The “right to access” is the means to enhance the right to humanitarian assistance, the “effet utile”. Hence it is logical that a right to humanitarian assistance exists.
Although it seems that a right to humanitarian assistance is implied in many international agreements or in various Security Council resolutions, the problem of the approval of the affected State remains. Indeed, since humanitarian assistance is considered as interference in the State’s affairs, it needs State’s authorisation. However, if the right to humanitarian assistance really exist, then there should not be any need to obtain State’s consent.
Still a need to consent to?
In the past, no humanitarian movement would have assisted people when the State expressly declined external aid. This “old” perception of humanitarian assistance has nevertheless changed due to new ideas, new problems and due to the Security Council. “While national sovereignty is the basis for the international legal order, developments in the field of humanitarian law and human rights law have established that there are some conditions under which such sovereignty may be challenged.”
The old perception: need to consent to
The principle of State’s sovereignty obliges humanitarian societies to obtain the endorsement of the incumbent authority before they can intervene. That is how the principles of neutrality, humanity and impartiality emerged in the context of humanitarian assistance: “l’accès des organismes d’assistance est subordonné à l’obtention du consentement de l’Etat, lequel ne l’accordera que s’il est convaincu de l’impartialité de l’assistance.”
The country may either call for assistance or receive an unsolicited offer of assistance from an organisation or a State. In both cases, the ruler has the last word since the disaster or the onslaught occurs on its territory. The decision taken by the authorities hinges upon who will assist its people, upon the level of the crisis, upon its threat to regional or global security, upon the extent of public interest, upon collective and personal prestige… Indeed, the main reason for denying access to humanitarian assistance organisations is prestige. States do not want to admit that they are not able to cope with a given situation. In addition, when it comes to a situation involving an armed conflict (even of low intensity), the recognition of the need for humanitarian assistance may be tantamount to a political recognition of the opposition, of the rebels even though article 3 of the Geneva Conventions stipulates that such a correlation does not exist. If these organisations obtain its permission, then they can assist people but if the State refuses, then they are supposed not to enter the territory of the State where the armed conflict rages.
The State can nonetheless not arbitrarily decline humanitarian assistance. Indeed according to article 59§1 GCIV, a State is not entitled to arbitrarily discard assistance when the civilians do not receive enough food. Although this provision is only valid during international armed conflicts, a twin one can be found in article 18 APII . The official commentary on article 18 adds that the authorities cannot give an unfounded refusal because it would also be in contravention of article 14 which prohibits the use of starvation as a method of combat.
Moreover the prohibition to refuse humanitarian assistance founds its sources in the international obligation to respect and ensure human rights. Some authors go even further by stating that there is a “duty to seek international assistance in situations where widespread starvation would otherwise occur” derived from the obligation of UN Member States to co-operate internationally.
The international community still believes that authorisation should always be sought by humanitarian organisations and States should be ready to sustain the affected State. For example, the General Assembly in its resolutions 45/100 and 46/182 reaffirms the principle of sovereignty and then “invites” affected States to facilitate the access to the people in need. GA resolution 46/182 provides that “the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the UN. In this context, humanitarian assistance should be provided with the approval of the affected country and in principle on the basis of an appeal by the affected country”. Such a cautious formulation attests that the international community is not ready yet to abandon the principle of sovereignty but tempted to do so.
In fact, the international community prefers to obtain State’s consent but if it does not, then it is unable to agree on the legal consequences.
Two new perceptions
It is in this context that two new perceptions concerning States’ consent emerged: the right to access and the right to counter-measures.
Right to access
More and more often the claim that State sovereignty “should not stand in the way of providing people with humanitarian assistance, but should facilitate it” could be heard from various forums. Since international human rights do not belong to the domestic pale anymore, States cannot invoke their domestic jurisdiction in order to prevent the international community or other States from intervening in order to protect/ensure fundamental rights and freedoms. However it does not signify that humanitarian intervention is legal since this later form of intervention involves the use of military force in a foreign country which is in plain contravention of article 2§4 of the UN Charter.
Many legal scholars as well as politicians declare that humanitarian assistance is not tantamount to the reduction, to the subtraction or to the violation of State’s sovereignty. It only intends to exercise State’s sovereignty in a more humane and moral way. Since concrete humanitarian action is not possible without access to the victims, it became more and more urgent to create such a right on the international level, or at least to set the principle of free access to victims. Accused of being a new form of colonialism, the principle of free access however does not imply any sovereignty abdication but a more flexible exercise of State’s sovereignty.
Many resolutions refer to the access of humanitarian organisations to populations in need and it seems that the Security Council employs all possible means to enforce such a right/principle: victims should be reachable by roads or planes, the airport of Sarajevo should be secured, convoys should be protected, the mandate of the FORPRONU should be expanded, military flights should be outlawed and safe areas created. Since the Security Council uses the words “demands” and “requests” very often, it illustrates that it contemplates this right (or principle at least) as very important. This legal arsenal can be perceived as coercive and military (see the use of the word “to occupy” in resolution 836).
It makes plain that this body really had in mind a “right” to access and that the State was not only compelled because of the mandatory effect of chapter VII resolutions. Subsequently, the approval of the affected State is not necessary anymore. This latter is obliged under international law to accept the presence of humanitarian societies on its territory.
The General Assembly’s resolutions are rather revolutionary because they proclaim a right to access compelling the affected State to let humanitarian movements enter its territory. In pursuance of these resolutions, humanitarian corridors can be established but the exercise of this right to access needs to fulfil certain requirements as sketched in the report of the Secretary-General:
- limited in time: the corridors are considered as transit zones;
- limited in space: the right to access is constrained to the travels to the point where people are in need;
- limited in its goal: the right to access has to be linked with humanitarian assistance as depicted in part IIAI;
- limited in its exercise;
- limited by deontology: the principles of humanity, neutrality and impartiality have to be abide by.
The right to access is actually a proof that a right to assist people exists.
The new method of encouraging even obliging States to accept humanitarian assistance is to adopt economic counter-measures which range from the suspension of contracts to a comprehensive embargo. It is considered as the best means to compel a State to accept external humanitarian assistance and to oppose infringements of human rights.
Pursuant to a recent arbitration, economic counter-measures are legal though political or military ones are not. They are then called reprisals. Since humanitarian assistance consists in the provision of economic rights (right to food, right to adequate standard of living (shelter, clothing…)) one can surmise that counter-measures involving humanitarian assistance cannot be regarded as illegal counter-measures, as reprisals.
It should nonetheless be borne in mind that some requirements have to be fulfilled in order for the counter-measures to be legal:
- counter-measures are the direct reaction to a breach of an international obligation (in our case, the protection of international human rights);
- only States can take counter-measures. It means that humanitarian societies are powerless whereas States and hence the United Nations are able to take steps in that case;
- counter-measures should be proportionate to the violation. The dropping of food or clothes cannot be regarded as disproportionate to the infringement of non-derogable international human rights and of humanitarian law. Moreover counter-measures should never violate non-derogable rights. This is a bar against humanitarian intervention which uses military force in order to ensure the respect of human rights.
Therefore, Corten and Klein plead that dropping humanitarian assistance onto the territory of a State which has refused this aid, is legal. The Security Council resolution 761 seems to indicate that such a position is tenable: “in the absence of co-operation, the Security Council does not exclude other measures to deliver humanitarian assistance to Sarajevo and its environs”. For example, the operation “deny flight” launched by NATO (North Atlantic Treaty Organisation) forces permitted the dropping of humanitarian aid in places which were out of reach.
Article 2(7) and chapter VII: Territorial competence principle versus Security Council resolutions
According to customary international law and to article 2(7) of the UN Charter, every State is sovereign on its own territory and does not tolerate any foreign non-requested incursion. However such a principle can be overridden by the Security Council when it invokes chapter VII.
Only once during the hostilities in the Former Yugoslavia, when the situation on the ground seemed to be desperate did the Security Council called upon Member States, acting individually or collectively, to “take all necessary measures” in order to facilitate humanitarian assistance in the Former Yugoslavia (resolution 770). The Security Council thus obligates States to sustain the UN and other organisations to accede to the place where victims are. The right to access being conclusively stated in that resolution one can declare that no approval of the affected States was required. Here I would like to focus on two main issues raised in that context during the armed conflict in Yugoslavia: the safe areas and the ban on military flights.
By resolutions 819 (Srebrenica), 824 (Sarajevo, Tuzla, Zepa, Goradze, Bihac, Srebrenica) and 836, the Security Council declared six areas of Bosnia-Herzegovina as safe. According to resolutions 836 and 900, they are of temporary nature and their primary objective is to prevent the combatants from attacking civilians and allow displaced people to return to their homes in peace. Indeed the Security Council made it unambiguous that these areas were only adopted in order “to respond to an emergency situation” and should not be considered as an end in itself. Therefore, no sovereignty loss could be invoked by Bosnia Herzegovina.
According to the Secretary-General report, UNPROFOR deployed in the safe areas was responsible among other tasks for:
- monitoring and controlling access to the safe areas;
- offering a response to attacks against the safe areas, against convoys to and from such areas and against UNPROFOR personnel;
- monitoring the safe areas for possible breaches of the cease-fire and discourage such breaches;
- monitoring surrounding areas in order to detect current military actions and future intentions.
The impulse of the creation came from the ICRC: the safe areas protected by UN forces and with the agreement of the warring parties. However the safety zones created under the Security Council auspices did not fulfil these requirements:
- On the 27th of November 1991 the different parties to the conflict signed a memorandum of understanding providing the establishment of protected zones and humanitarian corridors in pursuance of international humanitarian law. Since practice was in contravention of this memorandum, the Security Council by resolution 836 requested that those areas be given full respect by the warring parties and almost abandoned the idea of seeking an agreement with them. Later on, in resolution 959 the Security Council invites the Secretary General to encourage the warring parties to conclude agreements. Notwithstanding the resolutions and the numerous Secretary-General calls to stop the attacks against the safe areas, combatants inexorably continued to fight and did not cease the bombing. The fact that the Security Council imposed the safe areas as such attests that it grasped the importance of humanitarian assistance even when the State does not assent to it.
- Since no agreement was sought by the United Nations, the peace-keeping forces were obliged to protect these areas. Consequently their mandate was expanded and their number increased. Resolution 836 authorised UNPROFOR, acting in self-defence to use force in reply to attacks against the safe areas or to impediment to humanitarian assistance convoys. Practice was nonetheless different since the peace-keeping forces restrain themselves from using force and consequently were never or hardly able to protect safe areas. With this end in view the NATO intervened in pursuance of Security Council resolution 844 and offered close air support to the FORPRONU and then launched air strikes in order to disentangle the safe areas and especially Sarajevo.
The existence of safe areas during the Yugoslav crisis is a proof that the authorisation issued by the State’s authorities is not necessary when a situation is so dramatic. Can we thus declare that the Security Council set a sort of threshold above which the permission of the affected State is not required anymore?
Ban on military flights
By resolution 781 the Security Council decided to prohibit military flights in the airspace of Bosnia Herzegovina (except for those of UNPROFOR and other flights in support of UN operations) in order to ensure the security of humanitarian convoys. Indeed this ban was considered as an essential element of the humanitarian assistance action undertaken and/or protected by the Security Council. However this body did not expressly invoke chapter VII but recalled a former resolution based on chapter VII. Actually the various parties to the conflict had previously agreed on a ban on military flights at the London Conference of 26-27/08/1992.
However when it became apparent that all three parties’ aircraft regularly violated the ban though the compliance system monitored by UNPROFOR, the Security Council once more triggered its chapter VII powers and authorised in resolution 836 Member States, acting individually or collectively but in co-operation with the United Nations, to “take all necessary measures” to enforce the ban. NATO in January 1994 decided to undertake this task beginning in mid-April 1994 and launched the operation “deny flight” which was a partial failure since the NATO air force refused to shoot down the aircraft which contravened resolution 781.
These resolutions are nonetheless very important in the framework of humanitarian assistance because they subtracted from the authority of the government of Bosnia-Herzegovina some parts of its territory. Indeed even Bosnia-Herzegovina was not allowed to use its airspace for flights other than of humanitarian nature: it was not territorially competent anymore. Though one could content that this was done with State’s approval, it should be borne in mind that the enforcement of this ban was undertaken under chapter VII and hence that military aircraft of Bosnia Herzegovina could also have been shot down by the NATO forces.
A perusal of the Security Council as well as of the General Assembly resolutions reveals that under certain circumstances no consent of the affected State is required anymore. Indeed everything hinges upon the threshold of atrocities committed during a strife. When it shocks mankind, then the international community through the UN bodies show a high proclivity to put the principle of territorial sovereignty aside. Since no consent of the affected State is required anymore in that case, it is one more proof that a right to humanitarian assistance whose beneficiaries are humanitarian organisations exists. To turn it into a victims’ right is a more tricky question.
The corollary duty to this right
If one admits that a right to humanitarian assistance for victims is existing or emerging then it signifies that there is a corollary international obligation or even a duty, “un devoir d’ingérence”.
A right to humanitarian assistance for humanitarian organisations, an emerging right to humanitarian assistance for victims
A right to humanitarian assistance for organisations can chiefly and easily be deducted from the non-obligation to obtain State’s authorisation anymore (when the disaster attains a certain threshold) and from the right to access (see international humanitarian law, GA and SC resolutions).
On the contrary a right to be assisted is only emerging. It is implied in the UN Charter, in the right to food and adequate standard of living and in international humanitarian law but not in the resolutions of the bodies of the United Nations. In fact a right to humanitarian assistance for victims can only be deducted by a far-fetched teleological interpretation of the General Assembly and Security Council resolutions. As declared by François Mitterrand, on the 05/10/1987 when René Cassin was transferred to the Panthéon “parce qu’elle est celle de chaque homme, la souffrance relève de l’universel. Le droit des victimes à être secourues dès lors qu’elles appellent au secours et secourues par des volontaires qui se veulent professionnellement neutres, dans ce qu’on a appelé, il y a peu, “le devoir d’ingérence” humanitaire dans les situations d’extrême urgence, tout cela, n’en doutons pas, figurera un jour dans la Déclaration universelle des droits de l’homme. Tant il est vrai qu’un Etat ne peut être tenu pour propriétaire des souffrances qu’il engendre ou qu’il abrite”.
The Interaction Council compounded of former heads of State or government and of other high ranking people gathered on the 11th March 1990 during a session held in Lisbon and declared that “l’incorporation au droit international du droit d’assistance humanitaire, c’est-à-dire du droit des organisations humanitaires d’assister, du droit de demander une assistance et du droit de la recevoir” is one of the measure that should be undertaken in order to create a better interdependent world. It is apparent from these statements that humanitarian assistance is not contemplated anymore as a policy, as a substitute to the failure of the United Nations to suppress the atrocities committed in the Former Yugoslavia.
The dutyholders: the international community, the Security Council, individual States?
According to some authors, the principle of a right is that one is allowed, in pursuance of the law, to do something but it does not mean that another one, a superior authority, is obliged to enforce this right. In a “Etat de droit”, the State is compelled to protect and ensure people’s rights. However it does hold true in international public law because enforcement mechanisms are rather weak.
Some other scholars content that a right automatically implies an obligation. The next question is then: who are the dutyholders?
The victims’ right to humanitarian assistance
According to the preamble and article 1 of the UN Charter, a State is obliged to react to violations of human rights so that if one considers humanitarian assistance as the appropriate means to dam transgressions of human rights, States should consequently be compelled to provide such relief. However practice is in contravention of such a teleogical interpretation.
The main problem pertaining to the victims’ right to humanitarian assistance is States’ constant reluctance to admit that there is an obligation to lend a hand to people in need. In general States agree on the fact that victims should be helped but they do not wish to see this good will erected as an international legal obligation. Indeed it would be tantamount to a financial obligation, a huge burden. This explains why the Security Council in its resolutions 776, 787 and 900 or the General Assembly in its resolutions 47/168, 48/57 and 49/139 have to “call upon States” to contribute financially and through other kind of assistance to the humanitarian relief efforts. Donations and succour are not automatically given.
The humanitarian organisations’ right to humanitarian assistance
In this case the dutyholders are the warring parties in an armed conflict and/or the affected State. Since the right to access seems to be quite settled down in international law albeit difficult to enforce in practice, the link beneficiaries-obligators is evident and testifies once more that a right to be assisted exists.
The “devoir d’ingérence”: a moral obligation
In the beginning of the 1990s the expression “devoir d’ingérence” started to be used by many people however with different meanings. Some saw in it a right to intervene militarily, others an obligation to assist people, others a moral duty to help people in need. This terminology was deliberately agreed upon because it was and still is for diplomats and international lawyers provocative and because it attracted the attention of the media. However one should be rigorous when using this expression and should go back to the founders’ point of view: “devoir d’ingérence” is tantamount to “right to humanitarian assistance”.
According to its founders, this expression implies above all an ethical behaviour. Indeed the word “devoir” does not belong to the legal realm anymore but to the ethic one because a “devoir” is a moral obligation which is defined in accordance with a whole system of values. As pointed by Luca, this ethic dimension applies to the private sphere but is it also applicable to abstract entities like States or the international community? Furthermore one could question the existence of the international community as a whole since it is hard to find common values, a certain degree of homogeneity concerning the development level and shared interests.
“The advocates of a cosmopolitan morality” nevertheless “argue that human interest should replace national interest, that sovereignty is not an absolute good, that the moral good of sovereignty must, on occasion, yield to the superior imperatives of global humanity”. Subsequently States have a moral obligation to alleviate human suffering: they should at least be obliged to help and assist people in need.
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