Introduction

The 1990’s have sadly come to host an increase in civil wars. The atrocities of these wars and their outrages on human life and dignity have shocked the world. Alleviation of human suffering should be an imperative priority in any civil war, especially to ease the hardships of the civilian population. But in many internal armed conflicts – Biafra, Somalia and Bosnia-Herzegovina to mention a few – the assistance offered by humanitarian organizations has been refused access to the civilian victims, leaving the human disasters inflicted by civil war severely aggravated.

However, forceful delivery of humanitarian aid against the will of responsible authorities  goes well beyond the relief as such. An enforcement action for humanitarian assistance would namely ultimately entail the use of force, of which the UN action in Somalia 1992-1995 perhaps is the most striking example.[1] The relatively vague support in international law for a right to afford humanitarian assistance in internal armed conflicts, the inherent non-neutrality of any enforcement action and the absence of altruistic States imminently risk that force – veiled in humanitarian garment – will be used for other than purely humanitarian purposes. The saga of unilateral actions in Iraq, which began with the delivery of humanitarian assistance to the Kurds in 1991 through the protective no-fly zones[2] and ended with an outright invasion of the country in 2003, bears witness of this. Enforcement of humanitarian assistance must therefore be considered in the light of the risk of misuse. Seeing that different international actors actually have taken measures under the premises of enforcing humanitarian aid, the question of whether there is a legal ‘right to humanitarian assistance’ – although important – is not as pressing as the process for realizing such a right: what is an advisable procedure for deciding upon an enforcement action of humanitarian aid; who is appropriate to undertake it; and what are the adequate means to be used?

This process must duly take into consideration the rationale behind the principles of State sovereignty and neutrality of humanitarian assistance in order for an enforced relief action to achieve legitimacy; the public request of the UNHCR to NATO for assistance with its humanitarian aid operation in Kosovo constitutes an illustrative example of when this was omitted.[3] Through the proposed approach, realistic ways may be found to strenghten humanitarian aid and to enlarge the possibilities for it to be delivered. This would contribute to avoid situations like that in Somalia, where delivering humanitarian assistance was alledgedly harder after the troops had been in the country (because they had worsened the hostile environment)[4], or that in Kosovo where the consequences of NATO’s humanitarian involvement allegedly were that refugees in Albania and the Former Yugoslav Republic Of Macedonia were benefiting from aid at the expense of refugees in the Federal Republic of Yugoslavia.[5] First and foremost the advocated approach will thus favor the victims of civil war, but, as will be shown, a legitimate process for decision-making concerning enforcement actions for humanitarian aid will equally strenghten the UN system

After a discussion on the issue of a ‘right to humanitarian assistance’ under international humanitarian law[6] (2), this article will attempt to evaluate the enforcement of humanitarian assistance from a pragmatic angle according to the questions suggested above, i.e: what actors on the international scene are appropriate to undertake such an enforcement action (3); following what decision-making procedure (4); and with what means (5)?

Legal limitations on responsible authorities’ possibilities to refuse humanitarian assistance

In order to put the rules applicable to a responsible authority’s denial of humanitarian aid (2.3) in their context, a brief historical excursion on the principle of sovereignty (2.1) as well as a reiteration of the criteria of humanitarian assistance (2.2) is afforded.

2.1 Historical background of State sovereignty versus humanitarian assistance

A State’s undertakings in its internal armed conflicts have historically been viewed as something in which the international community should not interfere. This follows from the principle of sovereignty, which can be traced back to the Peace of Augsburg in 1555 where it was convened that the ruler of a State would also determine the country’s religion (cuius region eius religio[7]), a principle which in its extension effectively had the consequence of excluding any outside interference in the relations with the prince and his subjects.[8] The cuius region eius religio principle was subsequently reaffirmed and further elaborated in the treaties of the Peace of Westphalia in 1648 to embrace not only religious but also political matters[9], thus incorporating the State’s sovereignty of its internal affairs into the Grotian foundation of the system of international law, in principle existing to date. During the first half of the 20th century, the principle of sovereignty was enshrined in Art 2(1) of the Charter of the United Nations[10] as the principle on which that organization is based, as well as in Art 8 of the Convention of Rights and Duties of States (the Montevideo Convention).[11] However, through Arts 2(7) and 25 together with Chapter VII of the Charter, the member States of the UN agreed to subject their sovereignty to the Security Council in matters that threaten international peace and security. Consequently, a basis (the UN Charter) and a reason (international peace and security) for the international community to intervene in a State’s internal affairs were constituted. Furthermore, in the sense of the proclaimed universality of human rights enshrined in the 1948 Universal Declaration on Human Rights as well as the preamble of the UN Charter, the international community at least expressed an intention to be concerned about a State’s internal affairs with its nationals. Moreover, the Genocide Convention[12] and Art 7 of the Rome Statute[13] codifying crimes against humanity do not distinguish between international and non-international conflicts.

During the negotiations leading up to the 1949 Geneva Conventions14] (GCI, GCII, GCII and GCIV or GCs together), in spite of the horrific experiences of the non-international aspects of the World Wars, as well as the Spanish Civil War15], the concern was still that an extension of international law protections to armed opponents of a government would enhance the status of those opponents.[16] Nevertheless, the conference succeeded in moving the a priori internal situation of a non-international armed conflict from the exclusive jurisdiction of the State concerned to a matter of international concern through treaty law by the inclusion of Art 3, common to the four GCs. The diplomatic conference 1974-1977 leading up to the adoption of the two Protocols additional to the GCs17] (API and APII) was certainly affected by the dreadful events in Nigeria 1967-1970 (the ‘Biafra conflict’) which had shown the complexity arising from the distribution of humanitarian aid in internal disputes, inter alia the question of access to the territory of the civilian victims.[18] Nevertheless, States took care to include in APII – which treats internal conflicts – a safeguard of their sovereignty in Art 3:

1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

2. Nothing is this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs. [19]

The Geneva Conventions with Additional Protocols contain close to 600 articles of which only 29 apply to internal conflicts.20] Particularly, Art 70 of API questions States’ absolute discretion in approving humanitarian assistance in a far more pronounced manner than its equivalent for non-international conflicts, namely Art 18 of APII.

Finally, as an example of States’ continuing attachement to the principle of sovereignty with respect to humanitarian assistance, the UN General Assembly’s (UNGA) “Guiding Principles on the strengthening of the coordination of humanitarian emergency assistance of the United Nations” states that “the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations”[21], and it calls upon States to “facilitate the work”[22] of humanitarian organizations.

2.2 Criteria defining humanitarian assistance – humanity, impartiality and neutrality

In order to be labeled ‘humanitarian’, a relief action offered to a civilian population in distress by international organizations or State agencies must be provided in accordance with the principles of humanity, impartiality and neutrality.[23] An organization or relief action that fulfills these three criteria is thus defined as humanitarian. As such, the assistance “cannot be regarded as unlawful intervention or as in any other way contrary to international law”.[24] Conversely, should the aid subsequently prove to be lacking any of the three conditions, it will cease to be humanitarian.[25]

In a strictly legal context, the exigency that the aid be ‘humanitarian’ signifies that the only criterion for the distribution of relief is the need of the civilian victims. Consequently, the assistance will not contribute to either side of the conflict in which it operates, but its solemn goal is to prevent and alleviate human suffering wherever it may be found.

Humanitarian assistance must be ‘impartial’, meaning that the aid cannot be distributed on a discriminatory basis. Accordingly, no preference or disadvantage founded upon nationality, race, religious beliefs, class or political opinions must be given by the humanitarian organization. This does not entail, however, that all must be treated equal or that age or even sex may not be decisive factors for who is granted relief since those two attributes might very well affect the level of need for help. But voices have been raised that the humanitarian aid is being distributed partly on grounds other than the sole criterion of need. Especially the role of mass media (the ‘CNN Factor’) has been highlighted in this discussion.[26] This would entail what can be called ‘indirect impartiality’. In this sense, the impartiality principle does not only apply individually to each relief organization, but also to the ‘humanitarian community’ as a whole, and imposes a duty of co-operation between humanitarian actors.

The third pillar of humanitarian assistance is closely associated with the foregoing principle of impartiality and stipulates that the relief action must be neutral and never integrated into a political process or linked to the use of military means. The reason for this is plain to see: humanitarian assistance must never be exploited to veil non-humanitarian ambitions as such misuse would void the confidence in humanitarian aid.

Issues compromising the principle of neutrality appear in cases where humanitarian assistance is to be delivered in non-international armed conflicts contrary to the will of any of the belligerents – i.e. when the aid is to be enforced. Enforcement agents may very well find themselves in a situation where they cannot stay neutral to the relevant internal armed conflict as they would have to take action (militarily or economically) against the subject(s) hindering the aid. When these subjects are not just common criminals, but have a self-perception of being parties to the armed internal conflict, how could enforcing agents solve their task of ensuring the delivery of humanitarian aid by force, when it becomes critical, without engaging these parties? In these cases, the mission of the enforcers is flawed with an inherent lack of neutrality. The risks of this non-neutrality to spill over to the humanitarian agents must be minimized. As mentioned, lack of neutrality divests a relief organization of its humanitarian character for a good reason namely in order to close the gates to exploitation of relief actions for other than purely humanitarian ends. If it is accepted that humanitarian assistance in certain cases must be forcibly delivered, it is thus imperative to sustain a clear-cut distinction between the agents providing the humanitarian assistance and the agents enforcing it. It is equally important to prudently elaborate a set of clear rules regulating when, how and by whom humanitarian aid could be enforced. This is all the more important since a humanitarian enterprise may be perceived as neutral by some whilst it is rejected by others as taking sides in the armed conflict. Arguably, the opinion of an outside, disinterested person concerning the neutrality might be of particular relevance for the legality of a decision to enforce humanitarian relief whereas the attitudes of the victims and warring parties on the ground will affect the efficiency of such an action. This key issue – the elaboration of a neutral, legal decision-making process for the enforcement of humanitarian aid – will be dealt with under Section 4.

2.3 Legality of denial of humanitarian assistance in internal armed conflicts

At the outset, it must be emphasized that, according to the principle of subsidiarity, the responsibility to ensure the proper nourishment and other essentials of the population of a country first and foremost rests upon the State. Relief societies are only called upon to play an auxiliary role by assisting the authorities in this task.[27]

2.3.1 Article18 of Additional Protocol II and State consent to relief actions

According to international humanitarian law, humanitarian organizations have a ‘right of initiative’ in offering relief actions. Concerning non-international armed conflicts, this is pronounced in Art 18 (1) APII:

Relief societies located in the territory of the High contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services (…)

Art 18(2) APII in fine stipulates that if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, relief actions “shall be undertaken subject to the consent of the High Contracting Party concerned”.

A strict reading of these provisions clearly necessitates the agreement of the affected State to receive the humanitarian assistance, in order for the humanitarian actors to be able to perform their functions.

Concerning international armed conflicts, Art 59 GC IV states that when the whole or part of the population of an occupied territory is inadequately supplied the Occupying Power “shall agree to relief schemes” on behalf of that population. This would seem to be the most imperative stipulation of the GC complex with respect to affected States’ lack of possibility to refuse humanitarian aid. Out of a concern to protect the national sovereignty of the State receiving the relief[28], Art 70 API asserts that relief actions “shall be undertaken, subject to the agreement of the Parties concerned in such actions”. However, the denial of access of humanitarian assistance in international armed conflicts must be founded on valid grounds.[29]

2.3.1.1 Interpretation by the ICRC

Returning to internal armed conflicts, the ICRC Commentary on Additional Protocol II states that the fact that Art 18 APII requires consent “does not mean that the decision is left to the discretion of the parties”.[30] The Commentary then goes on to exemplify this by putting forward that denial of access to relief societies would amount to a violation of Art 14 APII prohibiting starvation as a method of warfare.[31] It also points to the authoritative  expression “shall be undertaken”, appearing also in other versions of the text, e.g.seront enterprises”.

When the living conditions for the civilian population are such as those described in Art 18(2) APII (“undue hardship owing to a lack of the supplies essential for its survival”) humanitarian aid will indeed make the difference between whether civilians starve or not.  However, even accepting the Commentary’s assumption that starvation in all circumstances would be used as a method of warfare[32] (but emphasizing that it indeed could be), its argumentation deserves a few comments. Firstly, the Commentary’s interpretation is contradictory to a clear and express provision of Art 18(2) APII that does not appear to be open to interpretation, at least not to the extent suggested. As indicated by the Commentary, this leads to a contradiction within the APII: a State could be in breach of Art 14 but in compliance with Art 18(2) if it refused to give its consent to the delivery of humanitarian aid essential to the survival of the civilian population on the insurgent’s territory with the purpose of weakening the rebellion. That State would starve civilians as a method of warfare in violation of Art 14, but have the right to refuse the aid under Art 18(2). Secondly, the analysis of Art 18(2) in fine which this contradiction entails would evidently have to be carried out in the light of the humanitarian concerns underlying the whole GC complex, but in order to be fair and truly bona fide an interpretation must also beware of the fact that the Contracting States did envisage a difference between the rules applicable in international and non-international armed conflicts (see Section 2.1 above). Moreover, States still appear to sustain this distinction: drawing on the same subject as the commentary’s example, it is not accidental that the Rome Statute does not treat the willful impeding of relief supplies as the war crime of starvation concerning non-international conflicts[33] (see Section 2.3.1 below).

There are some indications with differing merits pointing towards the ICRC interpretation of Art 18 APII that States are not free to deny humanitarian assistance. Firstly, being one of the most important actors on the humanitarian scene and one of the initiators of the APs, the ICRC could hardly endorse any other standpoint, which they, moreover, share with many other actors on the international scene.[34] In this capacity, the opinion of the ICRC is naturally also of value for the legal status quo of the APs. Secondly, as mentioned above, the ICJ has stated that the provision of strictly humanitarian aid “cannot be regarded as unlawful intervention or as in any other way contrary to international law”[35], which is in line with the presumption according to Common Art 3 and Art 18 APII that the aid as such is not to be regarded as interference in the armed conflict or as unfriendly acts. However, it cannot be deducted from the ICJ’s ruling that the State refusing its consent to the aid thus legally delivered engages in an illegal act on its part. Moreover, it would seem very bold to conclude that the ICJ referred to more than the delivery of relief as such, i.e. not including all the measures to be undertaken to implement it, which might very well entail the use of force. The authors of APII certainly did not envisage an enforcement action.[36] Nevertheless – and thirdly – the UNSC has taken such enforcement action on several occasions in cases where the responsible authority has refused the aid to be delivered. However, even if the Council should be considered a reliable interpreter of international law despite its highly political nature, its basis for interference was that a threat to international peace and security was at hand. Furthermore, it is unlikely that the UNSC or individual States would be prepared to take such action in all potential cases, notwithstanding the country in which they were to intervene, e.g. a permanent Member of the Council.

2.3.1.2 The party who shall give the consent

Another important aspect of the consent issue in a non-international context is who shall give the consent to the delivery of humanitarian assistance. The diction of Art 18(2) in fine APII requires the consent only of the “High Contracting Party concerned” (i.e. the legal government responsible for foreign affairs) and not that of its internal adversary. It would thus seem that a certain inequality between the belligerent parties is inherent in the text of Art 18 APII (and consequently in Common Art 3), potentially threatening the principle of neutrality. In the light of the historical preservation of State sovereignty, this provision is nevertheless not surprising since a requirement to obtain approval also from a rebellious political or military entity exercising the effective control over a territory within the (former) boundaries of the affected State, would be to a priori recognize the opponents of that government. However, an insurgent party falling under the application of APII according to its Art 1 is determined on the basis of whether that belligerent has, to a certain extent, the de facto control over a territory. It would then be rational to consider such an insurgent also a party “concerned” in the sense of Art 18 (2) in fine. Consequently, a High Contracting State would only be “concerned” and its consent thus required if the aid would have to pass over the territory that it itself controlled[37] and not when taking the tour over land controlled exclusively by an insurgent. For example, the consent of the Sri Lankan government was thus in theory not needed for the Indian operation in 1987 to provide aid to the Tamils under attack in the Jaffna region by Sri Lankan government forces. Seeing that the food and medical supplies had to be accompanied by Indian military jets into Sri Lankan airspace in order to reach the Tamil population[38], this example shows the implications of the enforcement of humanitarian assistance in reality. Therefore, approval of all parties to an internal armed conflict may indeed prove essential to deliver the aid in real life (which is illustrated also e.g. by the Biafran conflict) because both governments and insurgents will consider themselves “concerned”, and they both will possess means to physically impede any unwanted assistance.

2.3.1.3 Customary status of Art 18 APII

Notwithstanding any affirmations that Art 18 APII has achieved status as customary international law[39], it would appear dubious to equally assert that the substance of such a customary rule is in accordance with the ICRC interpretation, especially in the light of Art 2(4) and 2(7) of the United Nations Charter and lacking any explicit decisions on the issue.[40] Even though States rapidly condemn other States for not granting access to humanitarian aid[41] and even though States have taken actions to enforce humanitarian aid when impeded, it deserves to be reiterated that it remains uncertain if they would not uphold their own sovereignty when faced with a similar situation themselves. The usus and opinio juris elements of an international customary rule are after all the State’s own acts and legal convictions, not what they believe should be applicable to all other States but themselves.

2.3.1.4 Interpretative declarations

It is desirable that States are encouraged to give interpretative declarations to the APs and/or enter into treaties with the UN to the effect that they clearly give up their (potential) sovereign rights to deny humanitarian assistance other than for clearly specified reasons. The mentioned Guiding Principles on the Right to Humanitarian Assistance, elaborated by the International Institute of Humanitarian Law could in relevant parts stand model for such declarations or treaties, at least insofar as they deal with a right to provide humanitarian aid. Principle 10 states that “all authorities will grant the facilities necessary for humanitarian assistance to be provided” and Principle 6 gives the States and organizations concerned a right to undertake “all necessary means” to ensure access to the aid in situations where that is being refused. Naturally, it would not be realistic to imagine such an undertaking without States having confidence in the neutrality of the humanitarian operation; neutrality is also a prerequisite stated in the preamble of the Guiding Principles, which furthermore subjects any implementation action to a decision by the UNSC.

In conclusion, APII does not give any clear guidance on whether there exists a right to provide humanitarian assistance in internal armed conflicts.

2.3.2 Denial of humanitarian assistance as an international crime

When examining the refusal of humanitarian aid as a criminal act, it must be noted that in the jurisprudence of the international criminal tribunals, international crimes have been perpetrated by individuals[42], not by States (although these individuals might have used their States as tools for committing the crimes[43]). Below, only the international crimes of starvation and crimes against humanity will be treated, even though the actus reus of the crimes of cruel treatment, collective punishment and even genocide could be constituted by the means of denying humanitarian assistance.[44]

2.3.2.1 Starvation

Art 14 APII prohibits the starvation of civilians as a method of combat. This article is intertwined with Art 18[45], and when the intent[46] of the individuals in the refusing authority covers a proven fact that the impeding of the aid in fact was used as a method of combat, the denial of humanitarian assistance would constitute the war crime of starvation.

The Rome Statute clearly differs between international and non-international conflicts with respect to the hindrance of humanitarian assistance. As concerns international armed conflicts, Art 8(b)(xxv) prohibits the intentional use of starvation of civilians as a method of warfare, “including willfully impeding relief supplies as provided for under the Geneva Conventions”. The wording of the equivalent concerning non-international armed conflicts, Art 8(e)(iii), is more confined as it prohibits “attacks against […] humanitarian assistance”. Furthermore, that latter provision does not express such attacks as a means of starvation. Thus, the mere denial of humanitarian aid, implemented via other means than direct attacks, in a non-international armed conflict would not be a violation of the Rome Statute. However, once asserted that such an attack is at hand, Art 8(e)(iii) of the Rome Statute will apply to a broader range of situations than Art 14 APII, since internal disturbances has not been excluded from the former provision.[47]

2.3.2.2 Crimes against humanity

Art 7 of the Rome Statute expresses by and large crimes against humanity as they are acknowledged in customary international law.[48] Also according to customary international law, a widespread or systematic attack based on a policy by a State, an organization or a group[49] must be proven for a crime against humanity to be at hand. This excludes random acts hindering the delivery of humanitarian aid provided that such acts are not aimed at having widespread consequences; targeting of strategic objects may very well affect a vast group of people.[50] An example of the latter is when the security of only a few aid workers is menaced.

Apart from murder, the obstruction of relief actions might constitute several crimes against humanity as defined in the Rome Statute, e.g. extermination (Art 7(1)(b)); torture (Art 7(1)(f)); persecution (Art 7(1)(h)); and inhumane acts (Art 7(1)(k)). As for the crime against humanity of extermination[51], it is further specified in Art 7(2)(b) of the Rome Statute as including the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine.

In its judgment in Krstić, the Trial Chamber of the ICTY found that the blocking of aid convoys was part of the “creation of a humanitarian crisis”[52] which, combined with crimes of terror and forcible transfers, incurred individual responsibility for inhumane acts and persecution as crimes against humanity.[53] The impeding of humanitarian assistance has thus formed part of perpetrations of crimes against humanity.[54]

In sum, the obstruction of humanitarian assistance could certainly constitute the actus reus of several crimes against international law, also in non-international situations. Thus, in those situations where the impediment is undertaken with the required intent, the responsible agents of the relevant authorities are clearly under an individual obligation not to refuse the delivery of humanitarian aid.

Attention will now be turned to situations where the common factors pulling States towards compliance with rules of international law[55] does not work and when peaceful means of persuasion to that effect (e.g. negotiations or diplomatic pressure) have been exhausted. This is the realm of enforcement. Forceful measures of implementation become especially relevant to the delivery of humanitarian assistance since this is an intrinsically practical issue. In fact, the very existence of a right to provide relief, or to receive it, might be regarded as void without any means to implement it.[56]

The area in which the issue of enforcement of humanitarian aid would seem to be of special interest is the one within which the only prohibition of the refusal to accept the assistance is Art 18 APII, out of reach for the ‘clear’ international crimes. Seeing that a right within this field still would prevail over State sovereignty and entail the use of force if necessary, some actors might find other than purely humanitarian reasons to invoke it. The enforcement of that right would thus be very attractive to abuse.

Appropriate enforcement agents for humanitarian assistance

This Section analyses the advisability of the United Nations (3.1) and States (3.2) as enforcement agents for humanitarian assistance. Both these actors have demanded and undertaken implementation of humanitarian aid, invoking different moral and legal grounds for their actions.

3.1 The United Nations: the best imperfect alternative

A discussion on the advisability of the UN as an enforcer of the implementation of humanitarian aid is naturally ambivalent. On the one hand, it might be argued that the institution lacks the flexibility and rapidity to respond to humanitarian crisis in a satisfactory manner. Furthermore, the inherent political nature of all decisions emanating from the UNSC, menaces almost per se the principle of neutrality that applies to all humanitarian assistance.[57] The Council’s decisions ultimately rely on its Members’ considerations of their own national interests (such as economic interests or motivation to send their nationals into combat) and result in a randomness of action taken by the UNSC. The Council has for example chosen not to take measures to ensure a safe environment for humanitarian aid in Rwanda, where nothing was done to stop the slaughter in the spring of 1994 or in the conflict in Congo/Zaire where rebels attacked humanitarian aid workers and shipments.[58] Nor did the UNSC authorize any action to implement the delivery of humanitarian aid in Kosovo in 1999. This instability and lack of predictability of the Council’s decisions hamper the principle that humanitarian aid should only be distributed on the sole basis of need. Moreover, the absence of a review mechanism as well as the secrecy which shades many of the UNSC’s ‘informal’ meetings put in question whether the Council always promotes conflict resolution through dialogue and cooperation.[59] Indeed, seeing that the UNSC’s mandate include both ‘legislative’, ‘prosecuting’ and ‘executive’ functions, the institution does have an inquisitorial scent to it. On the other hand, it must be concluded that the UN is in fact the only international organ which, more or less within the scope of the rules applicable to it and at least without condemnation from the international community, forcefully can implement a potential right to humanitarian assistance according to international humanitarian law. Other organizations may indeed have more resources to do so, but their actions would not enjoy the legitimacy from which benefits the UN. Any decision by the international community to use force should be taken within the framework of a common institution with the aim of achieving peace. Furthermore, it would be advisable that, when armed, also the enforcement action as such is under UN command following agreements under Art 43 of the Charter.

The constitution of the UN is a revolutionary step in the course of history and an extra-ordinary accomplishment inasmuch as States have actually subjected their use of force to a peaceful forum. It is of course true that the lack of transparency and the veto rights of the UNSC are among the built-in defects of this forum that need to be remedied. In order for the UN not to undermine its legitimacy and rigidity by resorting to uncertain or large interpretations of well-intended rules, nor to be paralyzed by outdated provisions, the Organization and particularly its Council seems to be in dire need of a reformation. Such a reformation is thus motivated by a desire to strengthen the UN system and based on the belief that there exists an essential link between the legitimacy and the operational efficiency of that system. As to the task of enforcing humanitarian assistance, very clear rules on the conditions in which the assistance could be enforced as well as the powers and manners to do so would have to be among the changes to be carried out. In relation to this, special care should be taken to eliminate Member State’s possibilities to advance their own political goals under the auspices of humanitarian aid. For the legality of forcible implementation of humanitarian aid unleashes an immense power in that it includes the use of force and in that it overruns State sovereignty. It would be naïve and dangerous to expect that States would use such a power altruistically on their own initiative and not abuse it for their own interests; the human history of war as well as the present provide too many examples to the contrary.[60]

3.2 States or regional organizations: illegal and single-minded as enforcers

3.2.1 Prohibition of the use of force

According to established international law, States acting alone or in concert do only have the interim right to unilaterally resort to armed force in an act of self-defense under Art 51 of the UN Charter, until the UNSC can be seized of the matter. In all other cases, they are bound by the peremptory norm stipulated in Art 2(4) and 2(7) of the Charter which prohibits the use of force. Art 53 of the Charter makes clear that also regional organizations need to acquire UNSC authorization before embarking on enforcement actions.[61] Although it is true that Art 1 common to the GCs does call upon States to respect and make respect the rules of international humanitarian law, this provision does not constitute an exception to the prohibition of the use of force. It must equally be noted that the complex of rules applicable within the World Trade Organization extensively restricts member States’ possibilities to unilaterally impose economic sanctions upon other members of that organization, as do the International Law Commission’s Draft Articles on State Responsibility.[62] Therefore, in a strictly legal sense, the discussion ends here. States and regional organizations do not have the right to unilaterally enforce humanitarian assistance.

However, absence of UNSC response to humanitarian crises has on several occasions ignited a debate on the lawfulness of uni- or multilateral measures of States alledgedly undertaken to compensate such inaction by the Council. This entails the question if it is – albeit legally not permitted – perhaps moraly justifiable for States to intervene unilaterally in internal armed conflicts to enforce humanitarian aid. Although this article will not embark on the much-debated issue of what has become known as ‘humanitarian intervention’ as such, it is hardly possible not to treat some parts of it in a study like the present since the forced implementation of humanitarian assistance may very well form part of an enterprise of humanitarian intervention. The morality of State sovereignty will therefore be discussed (3.2.2), before general comments are made on the advisability of States as enforcers of humanitarian aid (3.2.3).

3.2.2 Consistency between State sovereignty and morality

Much of the debate on unilateral humanitarian intervention has focused on an alleged inconsistency between law and morality. The latter supports forcible relief for victims based on fundamental human values such as the right to life whereas the former rigidly prohibits this through the firmness of State sovereignty.[63] However, reliance on State sovereignty is not necessarily immoral. If one endorses a short-term perspective, it is true that – lacking non-interfering means to imperatively persuade a State to accept humanitarian aid – in certain cases sovereignty will prevail over intervention at the cost of human suffering. But in a long-term perspective – lacking clear rules and means eliminating potential and attractive misuse of the instrument of humanitarian intervention – a relaxation of State sovereignty for the benefit of intervention will be at the cost of stability of international relations and ultimately peace.[64] States in a position of relative strength will first and foremost act on the basis of their own moral principles[65], in their own interest and seize whatever opportunity to enhance their status. To open the legal gate to intervention on humanitarian grounds without severe control mechanisms would seem extremely dangerous, especially in the current state of world affairs, with one dominant military player who moreover constantly shows aspirations of global reach for its economic, political and moral ambitions. Since the international community is far from demonstrating a will to be united under the same economical, political or moral values (on the contrary), any attempt to achieve such blending would seem to be not only in vain, but also entailing internal armed uprisings and eventually war. The dividing up of Africa between the colonial powers during the Berlin Conference 1885, the disastrous effects of which still linger to this day in the civil wars ravaging the continent, is an illustrative example of how blunt Western interests abroad have resulted in war in a long-term perspective. A recent example of an intervention which has been veiled in humanitarian garment as other justifications have proven fruitless and which subsequently also entailed persistent internal armed resistance is the US-led invasion of Iraq in March 2003. At the outset, the proponents of its legality (or at least legitimacy) justified the invasion on a variety of grounds, the major one being a threat of weapons of mass destruction (WMD) in relation to which humanitarian concerns were subordinate. However, as time elapsed and no WMDs were found and no link between Saddam Hussein and international terrorism had been established, the Bush administration was left with the argument of humanitarian intervention: Hussein was a tyrant who deserved to be overthrown.[66] US and UK action during the whole chain of events in the region – for example in the Iran-Iraq conflict in the 1980’s, the unilateral establishment of the no-fly zones in 1991 and their subsequent forcible upholding in February 2001[67] – did certainly not render the March 2003 invasion and subsequent overthrowing of the Baath regime unanticipated.[68] However, the arrest of the dictator in December 2003 has not proven to decrease armed attacks on the Coalition forces.[69] In fact, continuing news reports bear witness of the contrary. As of the 28th of April 2004, there had been 263 American casualties after the capture of Saddam Hussein; after President Bush proclaimed the end of the war in Iraq on the 1st of May 2003, there had been 584 American casualties, of which 418 were combat casualties.[70] The American casualties since the war began numbered 724 of which 528 in combat; estimates for the civilian deaths as a cause of the war range between 8930 and 10781.[71] This ‘post-war’ is the one over the trust, the confidence and mostly the opinions of the population of the territory in which the interference took place.[72] It is a war on the legitimacy of the action. In this context, it may very well be argued that “king-making or imposing democratization is no business for outsiders”.[73] In fact, external interests and/or support may very well hamper any internal strife for freedom, which has been seen in many African States. In any case, people’s sense of nationality is deeply rooted and territorial losses are not easily forgotten; the Israel-Palestine conflict suffices as one gruesome example of this. One can only speculate in what armed conflicts future unilateral enterprises in disrespect of States’ sovereignty will result in, and one can hope that they are not increasing in size and number in spite of the fact that the enlarged actual possibilities for military action in pursuance of national interests after the Cold War to a great extent have been seized by the major military player in the world[74] (which might consider itself less concerned by a fear that equal measures will be used against itself[75]). The least to be done in order to curtail this tendency is the continuation of State sovereignty, in some areas subjected to the clear rules of peaceful, non-hierarchical international forums. Wing-clipped through the prohibition of the unilateral use of force other than for self-defense, State sovereignty is therefore not only a pragmatic basis for international relations, but it is also morally justifiable in that its strict upholding prevents war and thus human suffering on a large scale.

3.2.3 States’ incapacity to stay neutral

At least on the surface, unilateral use of force to enforce humanitarian aid shows a will within the international community to react to cases where assistance is being impeded. The problem is that the undertakings to realize such a will have been fairly concentrated to a small number of States and that humanitarian concerns may not be their only motivation for using armed force.[76] The aid will thus not always be distributed to those in most dire need of it. Furthermore, unilateral acts of this kind undermine the authority of the UN system and the international legal order, in particular when they are undertaken by the most powerful player on the international arena. That is catalyzed when attempts are being made to fit the violation of international law constituted by such unilateral acts into the existing framework of international law (be it through humanitarian intervention, ‘implied UNSC authorization’ or ‘material breach’); then what is being done is “to mould that law to accommodate the shifting practices of the powerful”.[77]

In the case of Iraq the military intervention was clearly of an escalating nature. The reasons for such escalation might be due to the fact that the durable solving of humanitarian problems is never a ‘punctual’ effort, but often profound changes must be done if suffering is to be eliminated on a sustainable basis. However, other reasons may also consist of long- and short-term strategic and economical concerns of the enforcing States taking use of the humanitarian disaster to achieve such goals. Even acknowledging the existence of altruistic States – a conception contradicted by both classical and contemporary history as well as recent events – it would seem an overwhelming task for one or a small number of States to neutrally be able to consider all the practical, political, ideological, cultural and other national and international implications of an intervention enterprise. Unless, of course, such problems are not realized by the States intervening unilaterally because they are compelled in their actions by a conviction of their own supremacy in such matters and therefore envisage themselves as rendering other nations (embracing other lifestyles, strange to the intervening States) a service. In order to strip good intentions of such potential single-mindedness[78], an organization comprised of the vast majority of the international community would instead seem much more suited for the task of enforcing humanitarian assistance. The military or economic coalitions of today (NATO, EU, OSCE, African Union, ASEAN, etc.) do not amount to the vast political, ideological and cultural diversity required of such an organization.

The enforcement of humanitarian assistance by definition does not aspire beyond the pure alleviation of urgent human suffering. But, as mentioned, it may very well form part of a larger, unilateral intervening enterprise and, if considered legal, also legally justify such an enterprise. Seeing that the enforcement of humanitarian aid includes the use of force if necessary and that single States or today’s coalitions, for the reasons above, are not well suited for neither the task of deciding when enforcement action should be taken nor be commanding the undertaking, they are not judged competent as enforcing agents of humanitarian aid.

Alternative decision-making procedure: an advisory role of the ICC

A few general conclusions can be drawn from the discussions above on the legality of a denial and the enforcement agents of humanitarian assistance. Firstly, notwithstanding what organ is responsible for an enforcement action, clear rules on under what circumstances humanitarian aid can be forcibly implemented and by what means must be elaborated in addition to existing humanitarian law. Secondly, these rules should be applied by an international peaceful organization stripped of political considerations and representing a diverse majority of the international community, which diligently could make neutral assessments of where humanitarian assistance is being unlawfully refused. Finally, such an organization would have to be able to react quickly to imminent humanitarian crises. With respect to this, in situations where such response necessitates the use of armed force, it would also be desirable to have the troops under the command of the international organization.

When elaborating on any suggestions in relation to the issues above, it must always be appreciated that the UN, the ICRC, other inter-governmental organizations and NGOs, especially local ones, do a tremendous work essential in different humanitarian crisis worldwide. Their experience and detailed knowledge must evidently be carefully appraised before deciding on any kind of measure to enforce humanitarian assistance or any assessment forming the base for such measures.

The International Institute of Humanitarian Law has elaborated 14 Guiding Principles on the Right to Humanitarian Assistance. This document stipulates in which circumstances such a right could be invoked (Principle 3), that humanitarian assistance must be granted access (Principle 6 and 10) and that the aid may be enforced by “all necessary means” failing granted access (Principle 6). The Principles also establish some fundamental criteria concerning the character of a forceful implementation enterprise, e.g. that it should be set off by the UNSC. It is here suggested that these Principles form a platform for international declarations and/or treaties to the effect of achieving the desired clarity of the rules applicable to humanitarian assistance, especially as to when and by whom it could be enforced.

4.1 Qualities of the ICC with respect to enforcement decisions regarding humanitarian assistance

An international peaceful organization with considerably less political occupations than – and formally not a part of – the UN is the International Criminal Court. This court represents a broad cultural diversity through the vast array of State Parties to the Rome Statute.[79] The ICC thus constitutes a neutral and multi-cultural forum. As has been described in the present study, the hindrance of humanitarian assistance can form part of several international crimes under the Rome Statute. The rules of the Rome Statute are relatively clear and inasmuch as they are not, they may be clarified through the jurisprudence of the ICC.[80] Although international courts are more directly subject to politics than national ones, the ICC’s interpretation of the Rome Statute would still be of a legal nature and thus profit from predictability and certitude, as opposed to the moody practice of the UNSC. It is true that the ICC to date lacks resources, but the court has only started its work, and it will evolve as different questions are referred to it. In order to be able to have a speedy process, a possibility for the ICC to give advisory opinions would seem reasonable.[81]

The ICC thus fulfills all of the criteria suggested above for an international organ responsible for decisions to enforce humanitarian aid except for the one on quick response (see however below under Section 4.2 how this could be solved through close co-operation with humanitarian organizations). The latter would also be failing the ICJ if this court was given a similar responsibility. The ICJ is furthermore not specialized in humanitarian law as opposed to the ICC, and it is a part of the UN. Moreover, the jurisdiction of the ICJ is subject to the consent of the litigating States according to Art 38(5) of its Rules. Art 12 of the Rome Statute gives the ICC jurisdiction over alleged crimes referred to it under Art 14, Art 13(b) or Art 13(c) of the Rome Statute committed within the territory of a State Party or by an alleged perpetrator who is the national of such a State. Admittedly, the ICC’s jurisdiction is complimentary to that of national courts according to paragraph 10 of the Preamble, Art 1 and Art 17 of the Rome Statute but the latter article provides safe-guards to ensure a bona fide application of the Statute on the national level as well as to uphold the rules of the Statute when the relevant State is unable to apply them (Art 17(1)(a)). It is also noteworthy that the jurisdiction of the ICC is not subject to UNSC approval.[82] In cases where humanitarian assistance is being unlawfully impeded by an insurgent party the affected State would thus have recourse to the ICC if it could not pursue the perpetrators itself and in cases where the illegal refusal is made on behalf of the State the latter would hardly persecute itself, thus activating the subsidiary jurisdiction of the ICC.

It is true that the ICC has jurisdiction over deeds of individuals and not over those of States. However, States are run by individuals, a fact that the UNSC has taken into consideration in establishing the ICTY and the ICTR (see also Section 2.3.2). According to Art 27 of the Rome Statute, not even Heads of State can escape the ICC’s jurisdiction by reference to their official capacity. Furthermore, the rules of humanitarian law might, in certain situations of which some would have to be more elaborately defined (e.g. Art 18 APII) impose a negative obligation upon belligerents to accept humanitarian assistance. Seeing that the ICJ does not have personal jurisdiction, this is an argument additional to those of lack of independence and weak jurisdiction on behalf of that court which render the ICC a stronger candidate for the advisory role which will be presented below.

4.2 Advisory opinion of the ICC on the unlawfulness of a refusal of aid

The present argumentation does not suggest that the ICC should be invested with the power to deploy military force in order to enforce humanitarian assistance. It would be unrealistic to expect broad international approval of such a drastic motion.[83] What is proposed de lege ferenda is instead that the described qualities (contrasted to the defects of the UNSC) of the ICC should be taken into account when undertaking a most needed revision of the rules applicable to the UNSC. This would be done to the effect that the ICC – collaborating with humanitarian organizations in fact-finding – be given a significant advisory role with respect to any determination on the unlawfulness of a refusal of humanitarian assistance in internal armed conflicts. For example, the Council’s exercise of a potential express stipulation in the UN Charter giving the former a power to combat humanitarian disasters with force could be subject to obtaining an advisory opinion on the situation at hand by the ICC. This Court would evaluate whether humanitarian aid is being unlawfully refused in the relevant situation. The invaluable ground knowledge of the humanitarian actors mentioned above would then be duly legally assessed by a competent organ, forming a sound, sustainable and legal basis (cleansed of political ambitions) for decisions on eventual measures persuading States to accept humanitarian aid. Keeping in close and constant contact (without losing their individual autonomy) and enjoying mutual confidence, these organs – the humanitarian actors, the ICC and the UNSC – would enable rapid reactions to unlawful refusals of humanitarian aid when they occur. Measures subsequently undertaken by the UNSC to this end would thus to a greater extent “reflect the objectives of the international community [and] not just the national interests of its most powerful members”.[84] The occurrence of these measures taken on the suggested legal basis would equally profit from an increased predictability.

4.3 Strenghtening the legitimacy of enforcement actions and the UN

It must be underlined that it is not advisable that the ICC also give advice on matters outside the pure question of legality of a refusal as such. Excluded are thus any opinions as to whether an enforcement action should be undertaken and, in the affirmative, by what means; according to international law these responsibilities still rest upon the UNSC. The application and scope of the latter might have to be defined, but they should as such remain with the Council which would thus not have its mandate diminished. Quite oppositely, the proposed advisory role of the ICC would contribute to a strengthening of the UN system as a whole since the legal assessments of the ICC would enhance the legitimacy and legality of UNSC actions to enforce humanitarian aid.

In response to the above proposal the objection might be made that it in fact is contrary to the rationale of State sovereignty that has been put forth in this study. What has been argued with respect to State sovereignty, however, is that it is a legitimate basis for international relations because it prevents war in a long-term perspective. Intrusions on it on humanitarian grounds must be clearly defined and regulated lest they will be misused, thus risking war. An advisory opinion of the ICC – a forum to which sovereign States voluntarily have adhered – would constitute a solid ground for a judgment on the use of force to implement humanitarian assistance which in turn would strengthen the rationale behind State sovereignty since this would bring rigidity and stringency into the equation. It would thus diminish the possibilities for power-greedy States to profit from an uncertain state of law. The mere circumstance that the ICC be given the proposed function does not as such menace sovereign rights compared to how they are subjected to international organizations today. In its practice, however, the court may find that State sovereignty is inferior to the delivery of humanitarian assistance in internal armed conflicts. For instance, this could come about through a broad interpretation of “attacks against humanitarian assistance” in Art 8(2)(e)(iii) of the Rome Statute or by using Art 21(1)(b) or (c) of the Statute to take into consideration the ICRC interpretation of Art 18 APII or even the Guiding Principles mentioned above, should they evolve into declarations and/or treaties as suggested. Then, sovereign rights would more definitely be subjected to humanitarian assistance than they are today. But it is not as important if the provision of aid would prevail over State sovereignty, as it is how this hierarchy would come about, because the dangers to international peace lay in the latter paradigm.[85] Those threats would be reduced if State sovereignty was to yield following a clear, legal process as opposed to ad hoc solutions and/or purely moral arguments.

Appropriate means for enforcement of humanitarian assistance

There have been cases where pacific means have sufficed to compel or trick the concerned State to allow for the humanitarian aid to be delivered. In Somalia, before it asked for military protection, the ICRC had in fact been able to set up a large-scale famine relief program in different communities thanks to complex negotiations with local authorities and without any outside military protection; and during the civil war in Afghanistan, market mechanisms, private transport and unmarked food bags were used to get the aid out to the needy.[86] Naturally, the many ways to compel a refusing authority to accept relief actions (e.g. political, diplomatic and media pressure) are only limited by the minds of clever and experienced negotiators with an understanding of the reasons for the denial and the material conflict.[7] However, seeing that they are the ones interfering with sovereign rights[88], the aggressive implementation methods, i.e. sanctions (5.1) or armed force (5.2), will be the chief subject of the following examination.

As a general remark, especially in light of the fact that refusal of humanitarian aid, according to one interpretation of Art 18 APII, is subject to conditions of proportionality, it would seem reasonable to assert that actions enforcing assistance are subject to equal requirements.

5.1 Targeted sanctions[89]: effective and human

In order to minimize the devastating human effects of the carpet bombing of a country’s economy constituted by comprehensive sanctions[90], the 1990s saw an increasing effort by the UNSC to make its sanctions ‘smarter’.[91] This signifies that the sanctions target areas and even persons that are susceptible and in a position to bring about the changes sought by the relevant sanctions. For example, UN sanctions against Sierra Leone were limited to an oil and arms embargo and restrictions on the travel of members of the military junta and in the Sudan a flight ban and restrictions on travel and diplomatic discourse were imposed.[92] The financial sanctions beginning in 1999 against the Taliban regime included freezing funds and other financial resources controlled by that regime or its undertakings.[93] In addition to this, starting with its directing an arms embargo against Ethiopia and Eritrea in 2000[94], the UNSC always includes time limits when imposing sanctions.[95]

The merits of a targeted sanctions regime are twofold: not only does it make sanctions more effective by ‘hitting a regime where it hurts’, but it also renders them less harsh on a civilian population since the latter in principle is exempt from their effects. However, with respect to the efficiency of any sanctions regime, studies have shown that the former depends on the implementation of the sanctions.[96] Regarding adverse effects on civilians, targeted sanctions have proven to (especially as a weapon in the “war against terrorism”) infringe fundamental legal rights of individuals, such as the presumption of innocence and an accused individual’s right to access to court.[97] In this context, it must not be forgotten that international law and the UN Charter still constitute the base for the application of tailored sanctions. They remain a means of force under Art 41 of the Charter and as such should not be seen as a universal remedy nor be applied in situations other than those envisaged by the Charter.

5.1.1 Neutrality of targeted sanctions

Tailored sanctions would be biased in the case where they target persons responsible for the impeding of humanitarian aid that are also part of a belligerent party. But due to the fact that these sanctions to their character force out an acceptance to that the aid is delivered, as opposed to armed force which merely physically ‘pushes the relief in’, they would not seem to menace the principle of neutrality in the same obvious way as does armed force (see Section 5.2.1).

In sum, properly implemented and with due regard to the facts that they are neither self-legalizing nor flawless, the potential effectiveness and relatively minor humanitarian impacts of tailored sanctions render them the most appealing alternative of forcible means to convince a responsible authority to accept humanitarian assistance.

5.2 Armed force

According to Art 42 of the UN Charter the use of armed force by the UNSC is a secondary means of persuasion relatively measures not involving military action. This indicates the nature of armed force as being one of last resort when all other possible ways of solving a threat to international peace and security have been exhausted.

5.2.1 Inherent non-neutrality menacing the legitimacy of humanitarian aid – imperative distinction between enforcing and humanitarian agents

The disadvantages of using armed force to implement humanitarian aid are first and foremost linked to the principle of neutrality and thus, through a diminished confidence for the humanitarian agents on the ground, also to the legitimacy of the humanitarian action. The case of the forcible delivery of humanitarian aid in Somalia illustrates how it may prove next to impossible for the enforcing agents to stay neutral to the armed conflict in which they operate since they would have to fight the belligerent(s) impeding the assistance.[98] This shows – and logic supports it – the inherent non-neutrality pertaining to a forceful implementation of humanitarian aid. Any enforcement action worth its name will by definition engage one or more belligerents whenever its mission becomes critical. Furthermore, what was from the beginning envisaged as a ‘chirurgical’ task may in the end prove to be a lengthy and, both in terms of casualties and funding, costly enterprise for all parties. In order to accomplish their goal enforcers may namely find themselves forced to enlarge their mission to comprise also the leadership; as argued throughout this article, this may in fact be looked upon as a possibility by certain enforcing agents and a motivation for embarking on a ‘humanitarian’ operation. At any rate, the enforcing agents run the risk of becoming, or at least (and just as bad) being perceived by a warring faction as, a party to the armed conflict – thus depriving it of its humanitarian nature – and even boosting a civil war by fighting fire with fire.[99] Such involvement in the conflict will menace the local and perhaps also the international confidence in the enforcement action, risking to diminish the legitimacy of the entire humanitarian operation. A lack of legitimacy would also obstruct the efficiency of the humanitarian operation since the delivery of the relief will be further complicated if the very beneficiaries of the aid do not have any trust in it. Should armed force prove to be the only way in which humanitarian assistance can be delivered, extreme care should therefore be taken to distinguish humanitarian organizations from enforcing agents so as to avoid that the distrust in the latter spills over to and imbrues the confidence and efficiency of the former.

In conclusion, the use of armed force to implement humanitarian assistance might be considered as a last resort. In order for such an operation not to be illegitimate and thus inefficient, it will be imperative that its enforcing agents are distinguished from its humanitarian actors.

Conclusion

6.1 Core issues: sovereignty, neutrality and legitimacy

A practical right to afford humanitarian assistance in non-international armed conflicts comes down in three core issues. The first one pertains to sovereignty, the other one to neutrality and together they actualize questions of legitimacy.

Concerning sovereingty, the lack of clear rules on when humanitarian relief is being unlawfully refused (Section 2) is combined with the fact that an enforcement action of it could still entail the use of force (see Sections 3.2 and 5.2). As for neutrality, there is an inevitable lack of neutrality with an armed enforcement action performing its mission (see Sections 1, 2.2 and 5). Any of these problems alone would raise concerns of its potential misuse; together they seem combustible to that effect. Unclear rules can and will always be used as legitimizing the actions of the interpreter, in the present case as another argument for unilateral humanitarian intervention. That is a concept which does not benefit from a general international acceptance[100] and which endangers international peace, which is why it is also immoral. The thus legally vague deployment of non-neutral ‘humanitarian’/enforcement agents would open the gate to operations under humanitarian flag for clandestine purposes and it would menace the confidence in – and consequently legitimacy of – humanitarian organizations, not only in the material armed conflict but also on a general, global level.

A few practical suggestions are made to overcome these issues.

6.1.1 Elaboration of clear rules and an advisory role of the ICC to respect sovereignty and enhance legitimacy

Firstly, clear rules would have to be elaborated[101], and existing ones clarified, on the questions of when, by whom, and how a forceful action to implement humanitarian assistance could be undertaken in situations when the aid is being refused by responsible authorities in a non-international armed conflict. This would particularly include a revision of the rules applicable to the UNSC when exercising its powers under Chapter VII of the UN Charter (e.g. to explicitly clarify whether the Council may deploy force to pursue purely humanitarian ends and desirably that it is bound by humanitarian law in so doing as well as to review the veto-powers). It would be reaffirmed that the UNSC is the only body with the power to authorize the use of force and this should be reiterated with respect to unilateral humanitarian intervention, e.g. by adapting the Charter’s rules so as to enable the UN to answer rapidly to crisis of the contemporary world. This revision would be undertaken with the view of strengthening the legitimacy of the UN system which would also lessen the arguments for unilateral humanitarian intervention.

In order for the UNSC to have a sound, non-political and legal basis for its decisions on whether an enforcement action should be conducted or not, it has been suggested that the ICC be given an advisory role as to whether humanitarian aid is being unlawfully impeded in a certain situation. This would contribute to a consistent elaboration of the clear rules called for above freed from political concerns, which would thus profit from predictability, stringency and neutrality. It would also enhance the legitimacy of UNSC and humanitarian actions.

Subject to their trust in the neutrality of humanitarian assistance, it has been recommended that States be encouraged to give interpretative declarations to Additional Protocol II to clarify their standpoint on the issue of whether delivery of humanitarian aid requires consent from the responsible authority and/or to enter into treaties to the same effect.

Arguably, the best means for sustainable alleviation of the suffering of civilians would be long-term ameliorations in their countries, preventing future armed conflicts. Such measures would however have to be executed with the greatest diligence so as to avoid value-imperialism, which is why a multi-cultural organization such as the UN is well-suited for this task.

6.1.2 Targeted sanctions and distinction between humanitarian and enforcing agents to obtain neutrality

The use of armed force has been envisaged as the very last means of implementation for humanitarian aid. In cases when it boils down to enforcing humanitarian assistance by armed force, such an action could almost never be neutral to the internal armed conflict in which the relief was to be given. In order for such non-neutrality not to imbrue the humanitarian organizations, these should therefore be clearly distinguished from the enforcing agents. The reason for this distinction is that a strict upholding of humanitarian organizations’ neutrality diminishes the risk that they be exploited for non-humanitarian causes.

Instead of armed force, and opposed to comprehensive sanctions, the use of targeted sanctions has been embraced as a means to forcefully persuade responsible authorities to accept humanitarian assistance, when other non-forcible measures have failed. It is true that targeted sanctions would be biased in the case where they target the person(s) responsible for impeding humanitarian aid that are also part of a belligerent of the conflict. However, these sanctions force out an acceptance to that the aid is delivered, as opposed to armed force which merely physically render delivery possible (by militarily engaging any refusing party of the armed conflict). Therefore, targeted sanctions would not seem to menace the principle of neutrality in the same obvious way as does armed force.

It must be borne in mind that a forceful implementation of humanitarian aid may unleash the use of armed force. This is an extremely sensitive subject. One of the greatest accomplishments of the 20th century and the very raison d’être of the UN is the submission of the use of force to a peaceful forum based on State sovereignty. Without adjusting and legitimizing them as suggested in the preceding paragraphs, obscurities in existing rules pertaining to the right to afford humanitarian assistance in non-international armed conflicts will continue to offer irresistible opportunities for ambitious States to invoke their side of the truth to exploit the possibility to embark on military enterprises in pursuance of national interests. Certain States have already seized such occasions. The consequences of a continuance of this trend will in the end through war fall back on civilians – the supposed beneficiaries of a right to afford humanitarian assistance.


* LL M, Department of Law, Göteborg University, Göteborg, Sweden with international law studies at the  Université de Sherbrooke, Québec, Canada; law clerk, District court of Göteborg; former internships with the International Criminal Tribunal for the former Yugoslavia (Chambers) and the Department of public international law and human rights of the Swedish Ministry for Foreign Affairs. The author wishes to express his gratitude to Marie-Élaine Dion for her constant, invaluable support and intellectual input.

[1] In S/RES/794 (1992), op.10 and 11, the United Nations Security Council (UNSC) used the powers invested in it by Chapter VII of the UN Charter to authorize and call for “all necessary means to establish a secure environment for humanitarian relief operations in Somalia.” This was the first time the UNSC had used force for “exclusively humanitarian internal reasons”, as pronounced by the then UN Secretary-General Boutros-Boutros Ghali, qutoed in Mary Ellen O’Connell, “Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy”, 336 Columbia. Journal of Transnational Law (1997), p.487.

[2] In S/RES/688 of 5 April 1991 the UNSC found that the Iraqi attacks constituted a threat to peace and security in the region and called on Iraq to end its repression of the Kurds and to allow for humanitarian assistance to reach northern Iraq. The Council did not, however, invoke Chapter VII of the UN Charter.

[3] Thus, “the dominant humanitarian player was a party to the conflict, the very antithesis of an impartial actor”, Toby Porter, ”The partiality of humanitarian assistance – Kosovo in comparative perspective”, Journal of Humanitarian Assistance, www.jha.ac/articles/a057.htm , p.4.

[4] Thomas Weiss ”Overcoming the Somalia Syndrome—’Operation Rekindle Hope’?” Global Governance: A Review of Multilateralism and International Organizations vol.1 no.2, 1995, p.13, who also argues that “two years and four billion dollars later, the warring parties are rested, better armed, and ready to resume civil war”. Former UN Coordinator for Humanitarian Assistance Jan Eliasson noted in several public speeches in late 1993 that there was a ratio of one to ten between humanitarian and military costs, referenced in Antonio Donini, ”Beyond Neutrality: On the Compatibility of Military Intervention and Humanitarian Assistance”, The Fletcher Forum, Summer/Fall 1995, p.34

[5] Porter op.cit., p.6-7, see the Report of the Inter-Agency Needs Assessment Mission dispatched by the United Nations Secretary General to the Federal Republic of Yugoslavia, Letter of the UN Secretary General S/1999/662 of 9 June 1999.

[6] This article is only concerned with international humanitarian law, and not human rights law. However, the problems described below concerning the non-neutrality and legitimacy of the enforcement of a right to humanitarian assistance would be equally relevant notwithstanding the legal field from which such a right is derived.

[7] “He who rules, his is the religion”

[8] Philip Bobbitt, The Shield of Achilles – War, Peace and the Course of History, London, 2002, p.487

[9] Ibid.. p.506

[10] San Francisco, June 26 1945, 1 UNTS XVI as amended.

[11] Montevideo, December 26 1933, 165 LNTS 19, not in force, however considered representing customary international law, see D.J. Harris, Cases and Materials on International Law, London, 1991, p.102-104.

[12] Convention on the Prevention and Punishment of the Crime of Genocide, December 8, 1948, UNTS vol.78 no.277.

[13] Rome Statute of the International Criminal Court, July 17, 1998, (in force July 1, 2002).

[14] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces on the Field, August 12, 1949 (GCI); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (GCII); Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (GCIII) and; Geneva Convention Relative to the Protection of Civilian Persons on Time of War, August 12, 1949, (GCIV), UNTS, vol.75 no.970-973

[15] Which surely ”contributed to a political willingness to at least superficially regulate some aspects of civil war”, James G. Stewart, ”Towards A Single Definition of Armed Conflict in International Law: A Critique of Internationalized Armed Conflict”, International Review of the Red Cross, Vol. 85, No.850, p.317

[16] Mary Ellen O’Connell, Humanitarian Assistance in Non-International Armed Conflict: The fourth Wave of Rights, Duties and Remedies, A Report prepared for the Third Meeting of Experts on Humanitarian Protection in Non-International Armed Conflict, International Institute on Humanitarian Law, Stockholm, September 19-23, 2001, p.4

[17] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, June 8, 1977, UNTS vol.1125 no.17512; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, June 8, 1977, UNTS vol.1125 no.17513

[18] Nathaniel H. Goetz, ”Humanitarian Issues in the Biafran Conflict”, Journal of Humanitarian Assistance, April 2001, http://www.jha.ac/articles/u036.htm , p.1.

[19] Significantly, the Nigerian delegation took particular interest in this safeguard, see OR/I/239 (Official Record of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts).

[20] S. Boelaert-Suominen, ”Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards A Uniform Enforcement Mechanism for all Armed Conflicts?”, Journal of Conflict and Security Law, Vol. 5, No.63, 2000, at section 5, footnote 31

[21] A/RES/46/182 of 19 December 1991, Annex, para.3

[22] Ibid. para.6. This same pattern of reaffirming State sovereignty and desiring speedy response to the need for humanitarian assistance can also be found in UNGA’s resolution A/RES/45/100 of 14 December 1990.

[23] See GCs Common Art 3; Art 70 API; Art 18(2) APII; and A/RES/46/182 of 19 December 1991. These principles are also enshrined in in the Statutes of the International Red Cross and Red Crescent Movement (e.g. Art 5(2)(d) and 5(3)) as well as in the statutes of many NGOs and in the Guiding Principles on the Right to Humanitarian Assistance elaborated by the International Institute of Humanitarian Law in 1993 (para.5 of the preamble)

[24] Case concerning Military and Paramilitary Activities in and against Nicaragua , Nicaragua v. The United States of America, ICJ 27 June 1986, para.242

[25] The ‘humanitarian assistance’ given by the United States exclusively to the contras did thus not escape condemnation as interference in Nicaragua’s internal affairs, see ibid., para.243

[26] See e.g. Ignorerade kriser, bortglömda människor: Enligt vilka kriterier fördelas humanitart bistånd?, Swedish Médecins Sans Frontières, May 2003, http://www.lakareutangranser.org/files/ignorerade_kriser.pdf , visited on 2 October 2003.

[27] Jean Pictet et al., ICRC Commentary on the Additional Protocols, Geneva, 1987, p.1477, para.4871. This principle is equally enshrined e.g. in Art 55 GC IV.

[28] Ibid.., p.819, para.2805

[29] It was stated during the 1974-1977 negotiations that the consent clause did not imply that the Contracting Parties could refuse to give their agreement for arbitrary reasons, OR/II/SR.87, para.27

[30] Jean Pictet et al., ICRC Commentary on the Additional Protocols, p.1479, para.4885

[31] Ibid.

[32] The State might even believe that it is rendering its inhabitants a service by excluding help from the enemy. ”Method of combat” is a broad term and could certainly be interpreted as including many measures, perhaps even defensive ones, but it would have to be directly connected to the conduct of hostilities and not merely to the general fact that a war is raging.

[33] Art 8(2)(b)(iii) and (xxv) compared to Art 8(2)(e)(iii) of the Rome Statute. See Christa Rottensteiner, ”The denial of humanitarian assistance as a crime under international law”, International Review of the Red Cross, no.835, 1999, p.568.

[34] A fairly recent example of the opinion that sovereignty should yield in certain cases is the Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001, sponsored by the Canadian government. The Commission endorses the view that the primary responsibility of State sovereignty is to protect its people, the disregard of which entails a responsibility for others to intervene.

[35] Nicaragua case, op.cit., para.242

[36] See Art 3 APII quoted under Section 2.1.

[37] Michael Bothe, Relief Actions: ”The position of the Recipient State”, Assisting the Victims of Armed Conflicts and Other Disasters, ed. Frits Kalshoven, The Hague, 1988, p.91-97, at p.94

[38] Sri Lanka prevented the boats that would ferry Red Cross supplies to enter its waters.

[39] The ICTY Appeals Chamber has found that “the Additional Protocol II […] can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law”, Prosecutor v. Duško Tadić, Case No. IT-94-1, Appeals Chamber Decision on the Defence motion for interlocutory appeal on jurisdiction 2 October 1995, para.117.

[40] The ICTY Trial Chamber I concluded in Prosecutor v. Pale Strugar et.al., Case No. IT-01-42-PT, Decision on Defence Preliminary Motion Challenging Jurisdiction (7 June 2002) that Art 13 APII doubtlessly represented customary international law in that it prohibits attacks on civilians, para.21. Seeing that Art 13 is the portal to Part IV of APII in which Art 18 is also found, some relevance of this decision upon the status of Art 18 could perhaps be drawn by way of interpretation. Still, it explicitely refers to direct attacks on civilians.

[41] To mention only one example, condemnation of the refusal of both sides in the Biafra conflict for not agreeing on the delivery of relief was universal, George A. Mudge, “Starvation as a Means of Warfare”, International Law, vol.4 1970, p.255-264

[42] See e.g. articles 1-5 of the ICTY Statute (S/RES/827 of 25 May 1993 as amended) and articles 1-4 of the ICTR Statute (S/RES/955 of 8 November 1994 as amended) which all mention ”persons”. In Art 6 of the ICTY Statute and Art 5 of the ICTR Statute it is then clarified that the Tribunals “shall have jurisdiction over natural persons…”

[43] According to Art 27 of the Rome Statute, Heads of State and government or parliament and other State officials are not exempt from criminal responsibility under that Statute.

[44] For the full argumentation on all these crimes, see Rottensteiner, op.cit. and the author’s Master’s degree thesis Humanitarian Use of Force – The Right to Afford Humanitarian Assistance in Internal Armed Conflicts, Department of Law, Göteborg University, February 2004, available at www.handels.gu.se/epc/archive/00003563/ , pp.31-37.

[45] Pictet, op.cit., pp.1457 and 1479, paras.4798 and 4885

[46] Not being a set of criminal rules in the strict sense and being aimed more at States than individuals (as opposed to the Rome Statute) APII does not specifically mention intent to breach its provisions. As mentioned, this has been solved by the Statutes of the international tribunals by them referring to violations of the GCs, APs and other crimes as being committed by persons.

[47] Whereas Art 8(c) of the Rome Statute, which refers to Common Art 3, is expressly limited in the same way as the portal of APII, i.e. its Art 1(2) in that it excludes riots and other similar conflicts.

[48] Cassese in Cassese, Gaeta, Jones, ed. The Rome Statute of the International Criminal Court: A commentary, vol.I, Oxford, 2002, p.373.

[49] Prosecutor v. Duško Tadić, Case No. IT-94-1 (Trial Chamber), Opinion and Judgement 7 May 1997, para. 654. This part of the Trial Chamber’s judgement was not subject to appeal.

[50] Prosecutor v. Mile Msksić, et al. Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95-13-R61, (Trial Chamber), 3 April 1996, para. 30

[51] Which represents customary international law, as opposed to other parts of the Rome Statute, e.g. Art 7(1)(g) and 7(1)(i), see Cassese op.cit., pp. 373 and 376.

[52] That crisis was the “prelude to the forcible transfer of the Bosnian Muslim civilians”, Prosecutor v. Radislav Krstić, Case No. IT-98-33, Judgement 2 August 2001, para.615. The order to hinder humanitarian aid was given through the infamous ‘Directive 7’ of 8 March 1995 issued by the Supreme Command of the forces of the Republika Srpska, see Krstić para.28.

[53] Ibid. para.653

[54] The obstruction of humanitarian aid is also part of the Prosecutor’s allegations on persecutions in the Milošević case, see para.35(k) of the in the indictment concerning Bosnia and Herzegovina, 22 November 2001, Prosecutor v. Slobodan Milošević, Case No. IT-02-54.

[55] Decisions on whether to comply with international rules or not are generally made by States on the basis of a pragmatic estimate of their international political, economic and military ‘balance sheets’. The State will ask itself if would be worth the costs (e.g. bad reputation and diminished trade) of not complying with a certain rule, see e.g. Louis Henkin, How Nations Behave, New York, 1979, p.51 and Per Cramér, Neutralitet och Europeisk Integration, Stockholm, 1998, pp.36-38.

[56] As mentioned before, this has been foreseen by the Guiding Principles on the Right to Humanitarian Assistance which clearly accounts for a possible enforcement of humanitarian aid in Principle 6.

[57] Donini op.cit., p. 39 talks about the ”conceptual incompatibility” between the political compromises in the UNSC and the universal humanitarian imperative.

[58] See O’Connell, “Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy”, 336 Columbia. Journal of Transnational Law (1997), p.489-490

[59] As an example, the former UN Humanitarian Coordinator for Iraq, Graf Sponeck argues that as a consequence of these mentioned defects of the Council, Iraq has rarely had an occasion over the past decade to explain its position and defend legitimate interests in relation to the sanctions regime imposed upon it, see Graf Sponeck, ”Sanctions and Humanitarian Exemptions: A Practitioner’s Commentary” in European Journal of International Law (2002), vol.13, no.1, p.85

[60] For a view opposing the Hobbesian model of history as a war of all against all, see e.g. Anthony D’Amato, ”The Moral and Legal Basis for Sanctions”, in The Fletcher Forum, Summer/Fall 1995, p.24, who takes on a more Lockean view when he argues that international relations are a system of peace which strives to avoid war. He revises Henkin’s famous remark and states that ”almost all nations are and have been at peace with almost all other nations almost all of the time”. As a very brief response it can be said that only during the 20th century has the world experienced two global wars, of which the second lasted up until the 1990’s and furthermore that the world’s mightiest military power seems indifferent to international law on the use of force as long as the latter does not serve its national interests.

[61] Different organizations consider themselves being envisaged or not by this article and by Chapter VIII of the Charter. For example, the Organization for Security and Cooperation in Europe (OSCE) considers itself such a regional organization, whereas NATO does not; Art 5 of the North Atlantic Treaty (Washington 4 April 1949, 34 UNTS 243, in force 24 August 1949) states that the organization is one of collective self-defense, and it refers to Art 51 of the Charter.

[62] Draft Articles on Responsibility of States for internationally wrongful acts, annexed to the UN General Assembly’s resolution A/56/83 of 28 January 2002.

[63] See e.g the conclusion of the Independent International Commission on Kosovo, Kosovo Report (2000), p.186. The yielding of State sovereignty is treated here in the context of giving access to a State’s territory for the delivery of relief. Admittedly, the partial giving up of sovereignty to international organizations (such as the UN or the EU) in reasonable portions can be profitable. However, such submission is made on a voluntary basis and cannot be forcibly executed. In order for the benefits of this kind of cooperation to be durable, the sovereign rights thus transferred to the international organization should be very clearly defined (the lack of which is presently a defect of the EU).

[64] See also Nico Krisch “Review Essay: Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo”, in European Journal of International Law, vol.13, no.1, February 2002 (a European-American Dialogue Co-sponsored by the University of Michigan Law School and the EJIL), p.331. Krisch argues that the question of humanitarian intervention is a matter of choice between human rights or peace (and that peace have stronger considerations of justice than State sovereignty which in turn renders it a stronger moral argument); for this, he finds contemporary support e.g. in the UN Charter which emphasizes the maintenance of peace and he believes that if people have had the choice, they would have chosen peace over preservation of their human rights at all times. Through this maneuver, he thus lessens the gap between morality and law on the question of unilateral humanitarian intervention: the latter is neither moral nor legal because it menaces peace. The present article goes one step further in that it argues that also State sovereignty as such, because of the rationale behind it, namely peace, is moral; the upholding of State sovereignty is thus moral and legal (and equally included as a foundation of the UN system in Art 2(1) of the Charter.).

[65] See Hedley Bull, ed., Intervention in World Politics, Oxford, 1984, p.193, who argues that this jeopardizes a peaceful and just international order.

[66] Kenneth Roth, ”War in Iraq: Not a Humanitarian Intervention”, in Human Rights Watch World Report 2004. As pointed out by Roth, there are many factors testifying to the fact that the intervention was not humanitarian in character; for example, had the invading forces been determined to maximize the humanitarian influence of the intervention, ”they would have been better prepared to fill the security vacuum that predictably was created after the toppling of the Iraqi government”.

[67] There are different hypothesis on the influence of all the years of measures against Iraq. One holds for true that the unusually strong coalition that condemned the Iraqi invasion of Kuwait and subsequently imposed sanctions on Iraq indeed changed international law in many areas, e.g. the use of force and human rights. A contrary hypothesis is that the nature of the coalition and its fracturing created a number of neither desirable nor sustainable precedents. See ”The Impact on International Law of a Decade of Measures against Iraq”, European Journal of International Law, vol.13, no.1, i-ii.

[68] Naturally, the terrirost attack on the World Trade Centre and the Pentagon the 11th September 2001 put things in a new perspective for the USA. Cf., for example, Farer’s question in 2002 as to whether the USA would employ coercion not directly connected to 9/11 for wider strategic purposes; subsequently, allegations were effectively made by the Bush administration of links between Al-Qaeda and the Saddam regime, Tom J. Farer, ”Humanitarian Intervention Before and After 9/11” Holzgrefe and Keohane, ed., op.cit., p.87. A recent poll by CNN(Gallup) shows that 59 per cent of the American population thinks it ’was worth’ commencing the war; analysts believe that, still feeling vulnerable after the September 11 attack, the Americans are not susceptible of questionning the reasons for the Iraq invasion, Dagens Nyheter, 22 January 2004, at http://www.dn.se/DNet/jsp/polopoly.jsp?d=148&a=225778&previousRenderType=1

[69] During the fall of 2003, especially towards its end, reports of the present situation in Iraq made in terms of ’Iraq guerilla’ war grew more frequent, see e.g. the German Der Spiegel at http://www.spiegel.de/politik/ausland/0,1518,265052,00.html and the Brittish BBC at http://news.bbc.co.uk/1/hi/world/middle_east/3113417.stm both visited on 22 January 2004. The U.S. Defense Secretary Donald Rumsfeld disagreed during the summer of 2003 that the attacks on the Coalition could be defined as ’guerilla war’ under the Pentagon’s definition, (see http://www.cnn.com/TRANSCRIPTS/0306/30/ldt.00.html) but might during the fall have shown some inclination to the contrary, see http://www.thetip.org/art_Iraq_Guerilla_War___Rumsfeld_487_icle.html both visited on 22 January 2004 (source AP).

[70] Source: http://www.antiwar.com/casualties/ visited on 28 April 2004.

[71] Ibid., http://www.iraqbodycount.net/ visited on 28 April 2004.

[72] This is of course a classical problem for the conqueror of a State noted already in 1513 by Niccolò Machiavelli in The Prince, Chapter V. Debated as it is, this cynical oeuvre does not necessarily provide a particularly human approach applicable to a discussion on humanitarian assistance; it is here merely used as an example of the long term problems of foreign interference in the internal affairs of a State on the one hand, and as a reminder of the similarities between the political rationales it endorses and the foreign policy of certain powerful contemporary States on the other.

[73] Donini, op.cit., p.38

[74] According to the U.S Defense Department’s Annual Base Structure Report for the fiscal year of 2003, the Pentagon own or rents 702 overseas bases in about 130 countries, other sources say the number of bases abroad is close to 1000, see Chalmers Johnson, “America’s Empire of Bases”, TomDispatch.com, January 2004, at www.nationinstitute.org/tomdispatch/index.mhtml?mm=1&yr=2004 visited on 15 February 2004.

[75] To only superficially exemplify this, there are a number of internationally recognized treaties to which the U.S. is not a party, e.g. the Convention on the Rights of the Child, the International Covenant on Economic, Social, and Cultural Rights and the Rome Statute. It is remarkable that the USA, having signed the latter treaty in December 2000, ‘unsigned’ it in June 2002. The country is presently exerting pressure on other States to sign bilateral treaties with it exempting U.S. military and government personnel from the jurisdiction of the ICC.

[76] Farer, op.cit., p.75 alleges that the USA have ”wrapped particularistic interests of an economic or geo-political character in humanitarian garments” in cases where no authorization of the Organization of American States or the UNSC could be secured: the cases of Grenada, Panama and Central America in the 1980s.

[77] Michael Byers and Simon Chesterman, ”Changing the Rules About Rules?: Unilateral Humanitarian Intervention and the Future of International Law”, in Humanitarian Intervention: Ethical, Legal and Political Dilemmas, J.L. Holzgrefe and Robert O. Keohane ed., Cambridge 2003, p.203

[78] History offers many examples of what Farer, op.cit., p.76 calls ”civilizing missions and morally educative vocations”. Religious missonaries in Africa or forcible Western education of samis, inuits and other indigenous peoples may be mentioned as two examples.

[79] As of the 28th of November 2003, 92 countries were State Parties to the Rome Statute. Out of them were 22 African Countries, 11 were from Asia, 15 were from Eastern Europe, 18 were from Latin America and the Caribbean, and 26 were from Western Europe and other States. Source: www.icc-cpi.int/php/statesparties/allregions.php

[80] According to Art 21of the Rome Statute, the ICC shall in the first place apply the rules of the Rome Statute, but have, in second place recourse also to inter alia applicable treaties and principles and rules of international law, and failing that even general principles derived from national laws.

[81] The Rome Statute does not contain any provisions on advisory opinions.

[82] According to Art 16 of the Rome Statute, the Council can only put investigations of the Prosecutor on hold for a period of 12 months in a resolution taken under Chapter VII of the UN Charter; a procedure that may be renewed under the same conditions.

[83] Seeing that the world’s only superpower is actively working against the ICC, it could be argued that any suggestion involving that court is unrealistic. Although this article aims at practical solutions to practical problems, there is a line between pragmatism and simply passively accepting status quo. The former may still require some efforts to be undertaken in order to achive practical, durable, solutions.

[84] Sponeck, op.cit., p.86. Sponeck hints at similar thoughts when he calls for the UNSC to be guided by the ICJ and the UNHCR. As concerns humanitarian assistance, the inadvisability of the ICJ in the proposed advisory role has been commented upon previously in this section.

[85] This reasoning naturally presupposes that the ICC stays reasonably within the boundaries of the Rome Statute, and that it does not indulge in such vast interpretation of the rules applicable to it as the European Court Justice has done, detrimental to its legitimacy.

[86] Donini, op.cit., p.37, 41

[87] These people would evidently also be alert to any potential unwanted effects of their solutions, for example subjecting humanitarian aid to criminal elements of a black market, from which an incumbent regime very well might profit.

[88] In the situations envisaged by this essay, sanctions would force a responsible authority to accept humanitarian aid being delivered on its territory, a decision which a priori concerns its internal affairs.

[89] Seeing that comprehensive sanctions hopefully seems to be a forceful measure of the past, and that they also in some cases even amount to the actus reus of several international crimes, only targeted sanctions will be discussed here. For an elaboration on this, see Dungel op.cit., pp.67-72.

[90] Various UN agencies have estimated that comprehensive sanctions have contributed to the death of hundreds of thousands of Iraqi civilians, Müller and Müller, ”Sanctions of Mass Destruction”, in Foreign Affairs (1999), vol.78, no.3 at p.49. A report from Harvard University attributed to sanctions one thousand excess deaths per month among children under five years of age in Haiti, Sarah Zaidi, ”Humanitarian Effects of the Coup and Sanctions in Haiti” in Political Gain and Civilian Pain, Thomas Weiss, ed., Oxford, 1997, p.204

[91] See also the efforts to elaborate smarter sanctions by the academic-practical trilogy Interlaken, Bonn-Berlin and finally Stockholm processes; available at www.smartsanctions.ch (-.de; and -.se)

[92] Matthew Craven, ”Humanitarianism and the Quest for Smarter Sanctions” in European Journal of International Law (2002), vol.13, no.1, p.48

[93] S/RES/1267 of 15 October 1999

[94] S/RES/1298 of 7 February 2000

[95] Lutz Oette, “A Decade of Sanctions against Iraq: Never Again! The End of Unlimited Sanctions in the Recent Practice of the UN Security Council”, in European Journal if International Law, vol.13 no.1, p.93-103, at p.94. In the face of a most likely USA and UK veto in the UNSC against easening sanctions against Iraq in 1998, France, Russia and China decided to always demand the inclusion of time limits in future sanction, as a matter of principle, p.95.

[96] David Cortright and George A. Lopez, ed., Smart Sanctions: Targeting Economic Statecraft, Oxford, 2002, p.10. See also Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options, Results from the Stockholm Process on the Implementation of Targeted Sanctions, Department of Peace and Conflict Research, Uppsala University 2003, iv-vii. Available at www.smartsanctions.se

[97] For a thorough discussion on the implications for the international legal system of the fact that targeted sanctions might be in contradiction with fundamental rights of the individual recognized by national law, see Per Cramér, “Recent Swedish Experiences with Targeted UN Sanctions: The Erosion of Trust in the Security Council”, in Review of the Security Council by the Member States, Erika de Wet and André Nollkamper, ed., Antwerp/Oxford/New York, 2003. The question of legal safeguards for the targeted individual had to be abandoned by the Stockholm Process due to that it was politically extremely controversial, see p.103.

[98] In thus executing their task, the armed forces implementing the relief are naturally restrained by international humanitarian law. The UN has explicitly acknowledged that it is restrained by general principles of humanitarian law when acting under Chapter VII in relation to the use of force, see Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, of 6 August 1999.

[99] As might have been the case in Somalia, see Section 1 above.

[100] The Group of 77 which has 135 Member States, thus representing a majority of the international community, rejected “the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law”, para.54 of the Declaration of the Group of 77 South Summit held in Havana from 10 to 14 of April 2000, available at www.g77.org/Docs/Declaration_G77Summit.htm visited on 1 March 2004.

[101] It is reiterated that the Guiding Principles on the Right to Humanitarian Assistance elaborated by the International Institute of Humanitarian Law in 1993 is a remarkable effort to this effect, and that they could be the platform for negotiations on a treaty on the issue.

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