Beyond the Red Cross: The protection of independent humanitarian organizations and their staff in international humanitarian law

International Review of the Red Cross

Volumn 89, Issue 865, 2007, Pages 113-130

  Mackintosh, Kate ^a  

^a Humanitarian Affairs Department   (United States)

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EID: 79960059098     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383107000951     Document Type: Article

References (33)

1. According to a recent study, the absolute number of reported major acts of violence (killings, kidnappings and armed attacks resulting in serious injury) against aid workers has risen sharply since 1997. The annual number of incidents reported between 2002 and 2005 was nearly double those between 1997 and 2001 (a 92 per cent increase). A total of 408 separate acts of major violence were perpetrated against aid workers between 1997 and 2005, involving 947 victims and including 434 fatalities. See Abby Stoddard, Adele Harmer and Katherine Haver, “Providing aid in insecure environments: trends in policy and operations”, HPG Report 23, Humanitarian Policy Group and Center on International Cooperation, September 2006.
2. Geneva Convention I (GCI), Article 38.
3. GCI, Articles 26, 42, 44.
4. Geneva Convention IV (GCIV), Article 18.
5. Additional Protocol I (API), Article 9. There are a number of other conditions that also have to be fulfilled
6. see Yves Sandoz, Christophe Swinarski and Bruno Zimmerman, (eds.), Commentary on the Additional Protocols of 8 June 1977, ICRC, Geneva, 1987.
7. Articles 53 and 54 of Geneva Convention I.
8. See also Article 15, GCIV.
9. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Rep. 1986, para. 243.
10. Article 4 of GCIV. Part II of the Convention applies more widely, to the whole of the population of the countries in conflict, but there are no provisions in this section which could protect humanitarian workers, other than general provisions about respect and protection of vulnerable groups – wounded and sick, infirm, children and pregnant women – or of staff of recognized civilian hospitals, which are likely not to apply. Violation of these provisions would also not constitute a war crime.
11. See ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94–1-A, Judgement (Appeals Chamber), 15 July 1999, para.166: “While previously wars were primarily between well-established states, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new states are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly, the Convention's object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.” This reasoning has been confirmed by subsequent jurisprudence of the ICTY
12. see The Prosecutor v. Zlatko Aleksovski, Case No. IT-95–14/1-A, Judgement (Appeals Chamber), 24 March 2000, paras. 150–151
13. The Prosecutor v. Delalic, Case No. IT-96–21-A, Judgement (Appeals Chamber), 20 February 2001, para.183
14. The Prosecutor v. Tihomir Blaskic, Case No. IT-95–14-A, Judgement (Appeals Chamber), 29 July 2004, paras. 172–183.
15. ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995 (“Tadic Jurisdiction Decision”), para. 134.
16. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986 (“Nicaragua Judgment”), para. 218: “Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applies in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called “elementary considerations of humanity” …”
17. See Nicaragua Judgment, above note 18, as basis for the decision referred to in n. 17, Tadic Jurisdiction Decision, para. 102.
18. See “Rule 31: Humanitarian relief personnel must be respected and protected”, in Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, ICRC and Cambridge University Press, Cambridge, 2005. The ICRC finding is based on an extensive survey of state practice, and the rule is seen as a corollary of the prohibition of starvation and the rule that the wounded and sick must be collected and cared for.
19. For a wide-ranging survey of the application of customary international law by national courts, see Non-State Actors and International Law, Vol. 4, No. 1 (2004).
20. ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-A, Judgement (Appeals Chamber), 1 June 2001 (“Akayesu Appeals Judgement”), para. 438.
21. Article 7.2.b of the Rome Statute.
22. Article 7.1 and 7.2.a of the Rome Statute.
23. Rome Statute.
24. There are a number of other limits on applicability of the Convention, apart from that it is not universally ratified (79 at end-2005), such as that it does not apply to anyone once UN forces are engaged in combat. For a more thorough consideration of this treaty see Antoine Bouvier, ““Convention on the Safety of United Nations and Associated Personnel”: presentation and analysis”, International Review of the Red Cross, No. 309 (November–December 1995), pp. 638–66.
25. International Review of the Red Cross, p. 655.
26. International Review of the Red Cross, p. 656.
27. Fabrice Weissman, “Military humanitarianism: a deadly confusion”, MSF Activity Report 2003/2004.
28. Of course, as the judgment in that case found, is it also possible that it is not. One clear recent example was the request by the US-led Coalition in Afghanistan that recipients of aid provide intelligence: see MSF, “Coalition forces endanger humanitarian action in Afghanistan”, available at http://www.msf.org/msfinternational/invoke.cfm?component=article&objectid=409F102D-A77A-4C94–89E0A47D7213B4D5&method=full_html (last visited 25 January 2007).
29. “These “Provincial Reconstruction Teams” (PRTs) have a broad remit, not only playing a role in reconstruction but also in strengthening local government, negotiating between commanders, disseminating information from central government, and ”assist[ing] in the establishing of national legal codes”. At a time when a war is still being actively pursued, this has blurred the lines between military and assistance actors, and both NGOs and the ICRC have voiced concerns over these proposals.” Joanna Macrae and Adele Harmer (eds.), Humanitarian action and the “Global War on Terror”: a review of trends and issues, HPG Report 14, July 2003.
30. Sandoz et al., above note 6, p. 919.
31. Principles of Conduct for The International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes; see http://www.ifrc.org/publicat/conduct/code.asp (last visited 25 January 2007).
32. See, e.g., Peter Walker, “Cracking the code: the genesis, use and future of the Code of Conduct”, Disasters, Vol. 29 (4) (December 2005), pp. 323–36.
33. The idea of “certified humanitarianism” has been floated by others; see, e.g., Antonio Donini, Larry Minear and Peter Walker, “Between cooptation and irrelevance: humanitarian action after Iraq”, Journal of Refugee Studies, Vol. 17 (September 2004), pp. 260–72.