INTERNATIONAL HUMANITARIAN LAW
AS A FRAMEWORK FOR HUMANITARIAN ASSISTANCE
Address by the
Hon Jim Carlton,
Secretary General of
Australian Red Cross,
at the
National Conference
"International Humanitarian Law – The Challenge of Effective Implementation",
Hobart, 22 July 1999
It is my task this morning to set out some of the building blocks for our discussions over these two days by examining the value of International Humanitarian Law (IHL) as a framework for humanitarian assistance.
First of all I will define humanitarian assistance in the traditional sense, that is, impartial and independent assistance. As we shall see later, that concept is under threat. Then, by way of tidiness rather than any need to inform this already well-informed audience I will refer briefly to the framework of law underpinning humanitarian action in times of conflict, although as a non-lawyer I find it helpful to be reminded every so often of the underpinnings of our actions in the field, indeed of our legitimacy.
Following that brief excursion into the law I will try to illustrate the strengths and weaknesses of IHL as a practical instrument by drawing on the discussions between government representatives and humanitarian actors at three successive Humanitarian Forums convened over the last three years by the International Committee of the Red Cross (ICRC) at Wolfsberg in Switzerland. The objective of these meetings, attended by representatives of donor governments, the European Commission, UN agencies, the World Bank, the International Organisation for Migration, the ICRC and the International Federation of Red Cross and Red Crescent Societies was to give the participants an opportunity to share their analyses of the growing difficulties and failures encountered by humanitarian organisations and governments in providing protection and assistance to victims of conflicts.
As the most recent of these Wolfsberg meetings was held in May this year, their proceedings represent one of the most contemporary summaries of the current state of play in the increasingly complicated field of humanitarian action.
Finally I will refer to the recent conflict in the Balkans, where we have had eight Australian Red Cross delegates in the field, some of them in place well before and during the conflict. I returned earlier this month from a visit to Serbia (including Kosovo), Montenegro and Albania, enabling me to discuss these issues in a very practical way with our own delegates, with the heads of ICRC and Federation delegations and with the local National Red Cross Societies. I also enjoyed meeting up again with our Australian Ambassador in Belgrade, Chris Lamb, a distinguished alumnus of our National IHL Committee and still an adviser to the Red Cross and Red Crescent Movement on the long running issue of the Emblem. As with the earlier phases of conflict in the Balkans, the Kosovo crisis has raised serious problems arising from the unwitting, or more often wilful flouting of international humanitarian law, with grave consequences for innocent victims.
In the following address Thomas Gurtner will draw on his extensive personal experience with ICRC in the field to give a further perspective on recent issues and challenges, using ICRC operations in Afghanistan as a case study, and will inform us of the current application of these principles on our very doorstep in the Solomon Islands, from which he has just returned.
Before looking at the underpinning legal framework, let me first define humanitarian action, drawing on an analysis by Russbach and Fink.(1)
International humanitarian actions are conducted in conflict zones with the purpose of protecting and assisting victims of conflict, and alleviating their suffering. They are designed to fill the gap when local institutions fail to provide the necessary support for those suffering from physical or mental stress due to conflict or political violence.
Humanitarian action is directed towards the most vulnerable individuals or groups who are either at the mercy of the enemy or threatened by those supposed to protect them. The aim should be not only to save lives and alleviate suffering, but to respect the dignity of those in need. Effective humanitarian action should not cease with the end of the emergency, but seek to provide a longer term solution to meeting the needs of the local community in a sustainable way, and restoring civil society. Humanitarian action is provided altruistically, and impartially, untainted by political or other extraneous considerations.
Russbach and Fink lay down four basic conditions as a prerequisite for
humanitarian action:
Access to victims:
Not only is access required to deliver support in terms of protection and material relief, but it is also essential for a professional assessment of the need, so that support is properly and accurately directed. Information required includes such things as the nutritional condition of the affected population, the supply of medicine, the status of detainees or violations of international humanitarian law.
Effective dialogue with those in control of an area, be it a recognised government or even a rebel group, is essential to provide a basis for humanitarian action. In this respect the ICRC has a privileged position because of its Geneva Conventions mandate. UNHCR also relies on treaty obligations for its mandate, but there may be other players attempting to intervene without any secure standing. In many conflict situations only the ICRC can remain, and in severe situations such as Kosovo and Sierra Leone, even the ICRC can be forced to evacuate.
It is essential to ensure that humanitarian aid reaches the targets identified in the original assessment, and is not diverted by belligerents for their own purposes, or simply looted for profit. There must be no suspicion that the humanitarian aid is benefiting only one side in a conflict, or access will be denied.
Having the capacity to marshal resources, quite often into difficult locations, is a major challenge for relief organisations. To be truly effective an organisation needs to build capacity in advance to be able to respond to unexpected emergencies, and must have well tried organisational structures and procedures. However even the best equipped organisation still has to cope not only with the vagaries of the battlefield, but also in many cases with the complexity caused by the presence of a multiplicity of players.
Now to the legal framework for humanitarian action. According to Yves Sandoz, Legal Director of the ICRC(2), the provisions of humanitarian law governing international assistance are based on three principles:
A party to a conflict does not have the right to starve its adversary’s population. It must, like all States, allow free passage for international relief consignments intended for that population when such assistance proves necessary.
Parties to a conflict have an obligation to supply all civilians under their control – including their own population – with food, medicines and other items essential to their survival.
These principles are embodied in the Geneva Conventions of 1949 and the Additional Protocols of 1977,(3) and have been accepted by the vast majority of States. Would that they were accepted in practice as well as by adherence to treaty provisions! If they were we would not be observing the increasing concern of humanitarian agencies and responsible governments over the threats to humanitarian action caused by repeated violation of these principles.
In opening the first Wolfsberg Humanitarian Forum in June 1997 on the theme of "Threats to Humanitarian Action" the President of the ICRC, Cornelio Sommaruga, made this important point(4):
"… humanitarian action deals only with the symptoms of a crisis, not the crisis itself or its causes; it seeks only to relieve the victims’ suffering, not to punish the tormentors; it is essentially an act of charity, which is not necessarily a guarantee of justice. Consequently, humanitarian action and political action are, by their very nature, different."
He went on to say,
"… although, in our capacity as humanitarian workers, we can often give aid to the wounded, feed the hungry and protect the civilian population from various atrocities, we are powerless against the will to commit genocide, carry out ethnic cleansing or annihilate a particular group of human beings."
Thus humanitarian agencies cannot do without political leaders, to provide the frameworks for humanitarian action, but more importantly to take the steps needed to remove the need for humanitarian action in the first place. The purpose of the Wolfsberg meetings has been to continue a dialogue between humanitarian agencies and governments to tease these problems out and where possible seek practical solutions.
The 1997 Wolfsberg Forum produced a veritable laundry list of issues that were discussed, and in some cases possible solutions advanced. It is worth reproducing the list here if only to highlight the sheer number and wide scope of the concerns of the participants. The list is as follows:(5)
It is not surprising, looking at this list, that the participants agreed to meet again in 1998. In his concluding remarks(6) at the 1998 forum Dr Sommaruga singled out five key issues that should be seriously considered before any definitive conclusions could be reached. These were:
1. Principled humanitarian action
With the increasing number of agencies and growing competition in the humanitarian field it is essential that ethical and moral standards be developed and adhered to by agencies, and reinforced by governments. The widely endorsed "Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Government Organisations in Disaster Relief" is one such example. Proliferation, competition and confusion affect not only the quality of aid delivered, but also the safety of aid workers, as belligerents lose respect for the process. There is also an urgent need to restore the full scope of the protection mandates of the ICRC under international humanitarian law and of UNHCR under the 1951 Convention relating to the Status of Refugees.
2. Complementarity in Crisis Management
Humanitarian action must be backed up by political action. Crisis management requires a holistic view of all the factors involved, with the aim of seeking lasting solutions. This requires that all the players in the humanitarian, political and development spheres work jointly towards this end, each taking into account the respective responsibilities, mandates and competencies of each party. At the height of a conflict this interaction should focus primarily on access to the victims and on their protection.
3. Prevention
Preventive action, especially in pre-conflict situations, should give greater prominence to raising awareness of the ethical values entwined in human rights and international humanitarian law. This effort needs to be made in association with community based organisations. Red Cross and Red Crescent National Societies should play an important role in this.
4. Emergency relief and sustainable development
Humanitarian and development organisations, with support from the Bretton Woods organisations such as the World Bank, have an indispensable part to play in the post conflict phase. They can contribute towards preventing further crisis by promoting sustainable development programs and restoring justice and other public services, thereby generating a spirit of reconciliation and peaceful co-existence.
5. Frameworks and mechanisms
How to achieve a more concerted approach to crisis management and post crisis stability and development is a complex issue. The overall objective must be to strike a balance between global coherence and effective action. Any new mechanisms must be action and victim oriented, flexible and not politicised. Prominence should be given to setting up ad hoc coordination systems tailored to the specific requirements of each situation.
The third annual Wolfsberg Forum held in May this year focussed on the theme of protection for victims of armed conflict. An important input to the forum was the presentation by the ICRC of the preliminary conclusions of its large scale consultation project, "People on War", undertaken to mark the 50th Anniversary of the Geneva Conventions. The project’s main aim, by giving a voice to those affected by armed conflict, is to record their perceptions of the situation in which they are placed and to make known, among other things, how useful international humanitarian law is judged to be by its principal recipients and to what extent it is being implemented in current armed conflicts. The final report of this project will be released later this year.
The work is being conducted in approximately 13 countries ravaged by war. In each case the ICRC is organising a public opinion survey with a representative sample of the country’s population and in-depth discussions with those directly involved in the conflict, using face to face interviews and focus groups. By the time of the 1999 Wolfsberg Forum at the end of May this year the results were in from four countries, Columbia, Bosnia-Herzegovina, the Philippines and Lebanon. It is too early to draw firm conclusions from the survey results, but Wolfsberg participants were generally enthusiastic about the undertaking and the preliminary findings.
When completed, the People on War study will not only project the voices of the victims much more clearly into the international debate on issues of protection and assistance, but will also confront international actors with clearer demands for accountability and effectiveness.
As an example, respondents were asked to rate the effectiveness of the various organisations in performing particular tasks. It emerged that within countries suffering from conflict, people do make distinctions between individual agencies rather than lumping them together, as is often alleged. The ICRC received higher marks for protection that the UN in Columbia, the Philippines and Lebanon, but was outscored by the UN in Bosnia. As for assistance, the ICRC scored higher than the UN in all four settings.
However the main concern at Wolfsberg this year brings us back to the issue of our traditional definition of humanitarian action, underpinned by the principles of international humanitarian law. Wolfsberg tried hard to avoid being dominated by the Kosovo crisis, but it still cast a shadow over the forum, and intensified debate about a crisis in humanitarian action itself.
To illustrate the problem, let me quote from a background paper for the Forum prepared by Jean-Jacques Frésard of the ICRC:(7)
"Towards a new definition of humanitarian action
Those engaged in humanitarian action thus seem to be entering a new era since today even some war aims are based on humanitarian considerations. Thus, waging war on "barbarity" is considered to be "humanitarian" whereas humanitarian endeavour hitherto consisted essentially in attempting to prevent acts of barbarity or to relieve the suffering of the victims of such acts. With this return to the concept of a "just war", undertaken on humanitarian grounds, we depart from the law of armed conflict (jus in bello) in the direction of law that sets out the rules governing how war may be engaged in (jus ad bellum). Traditional humanitarian endeavour was sometimes accused of prolonging crises and failing to side with the victims against their oppressors; the new humanitarianism identifies the victims and goes after their repressors, in some cases resorting to military means of doing this. Traditional humanitarian endeavour affirmed its neutrality and used persuasion to move the warring parties towards respect for the rules; the new humanitarianism brushes aside that neutrality and seeks to force compliance with the rules, by force if necessary."
Differing views were expressed on this issue. The Norwegian Minister for International Development and Human Rights, Hilde F Johnson, supported the legitimacy of the use of force under certain circumstances. She noted that while "impartiality and neutrality of humanitarian work is indeed essential … in many cases impartiality no longer is seen to be opposed as such to armed protection." The ICRC, on the other hand, re-stated its view that the increased blurring of humanitarian and military activities "leave(s) classic humanitarian action, which is generally guided by the principles of neutrality and impartiality and seeks the maximum possible degree of independence vis-à-vis the military and political authorities, in a state of crisis."
The credibility of organisations such as the ICRC is clearly at stake here. In the Kosovo crisis it had to distance itself from NATO relief actions in Albania and the Former Yugoslavia Republic of Macedonia. If it had not, its capacity to assist vulnerable populations in Serbia and Montenegro would have been compromised. I shall refer to this issue later, when I speak briefly of the situation inside Serbia and Montenegro.
Wolfsberg 3 did not resolve this issue, and it therefore remains as a critical topic for further Wolfsberg dialogue, as well as a topic for the 27th International Conference of Red Cross and Red Crescent in Geneva in November, when the Red Cross and Red Crescent Movement meets with the States party to the Geneva Conventions.
Now let me turn to the Kosovo crisis, which, like the war in Bosnia-Herzegovina which preceded it, is a case study which will occupy the minds of the many players involved for a long time to come. A comprehensive analysis of the issues raised by Kosovo is a distant prospect. Indeed one hopes that some of the final chapters will be played out in the War Crimes Tribunal in The Hague. All I can do is to make a few limited personal observations which touch on some fundamental issues of humanitarian action.
Let me begin by quoting from some diary notes I wrote in the course of my visit to the Balkans:
"Tonight is Thursday 24 June. I am in a hotel in Dubrovnik, in transit to Albania, for the second half of a journey to the Balkans to visit the eight Australian Red Cross (ARC) field workers located in the region.
"So far I have visited Serbia (including Kosovo) and Montenegro, the targets of the NATO bombing, and the source of the Kosovar exodus. This kind of trip stirs deep emotions. As a representative of the Red Cross, my emotions must be tempered by the fundamental principles of the Red Cross. They include impartiality and neutrality, but they begin with humanity.
"My overwhelming emotion, however tempered, is to grieve for the suffering of all the innocent victims of the madness in the Balkans in the last ten years. Inevitably, given the events of the last few months, the focus of most attention in Australia has been the plight of the Kosovar refugees. It is indeed tragic, but it is only one chapter in a large volume of tragedies in the Balkans, many begun long ago and not yet played out.
"On Monday I visited Novi Sad, the most prosperous city of Serbia. It is a handsome city, with strong Hungarian influences on its culture, and containing a sizeable Hungarian minority. Australia will have seen television images of the destruction of the three bridges across the Danube at Novi Sad, and the burning of its oil refinery. They will also have seen pictures of the destruction of a school and two apartment buildings by a missile that went astray. Miraculously no one was killed in that incident.
"I saw all these sites. With the loss of the bridges, not only transport but also water supplies were cut off for one third of the city. I saw the uncovered ferries crowded with up to 100 people huddling together in the rain crossing the swift-flowing and broad expanse of the Danube, and another 100 waiting in the rain on either side. I wondered what their plight would be in the freezing Serbian winter.
"It is estimated that at least a quarter of Yugoslavia’s electricity supplies will be out for the winter, in a country that relies heavily on electricity for domestic heating. Electricity shortages and the destruction of a substantial proportion of the oil refining capacity, together with other industrial plant, have already expanded the number of unemployed, with little hope of early recovery.
"These observations apply not only to Novi Sad, but to the whole of Serbia, and to a great extent the smaller component of the Federal Republic, Montenegro. In the eyes of a humanitarian organisation like the Red Cross, the victims of these appalling circumstances are mostly ordinary people hoping to go about their lives in peace and security, and with virtually no direct influence over the political process.
"All these reflections disturbed me in my discussions with Sinjka Somer, the dynamic young woman who runs the Red Cross organisation in Novi Sad. However in Novi Sad the most disturbing impact of all came from a visit to what is called a ‘collective centre’ for Serb refugees left over from the previous war in 1995. These people were housed in a community hall in appalling conditions, reminding me of a visit to Cambodian refugees on the Thai border in 1979. The physical conditions of these people and their psychological state were profoundly distressing, and the thought of their fate in a faltering economy filled me with foreboding."
Quite apart from the broader political issues raised by these observations, which relate back to the Wolfsberg discussions on the complementarity of political and humanitarian action, the issue of the independence of humanitarian action is raised in an acute sense. Only the ICRC was left in Serbia and Montenegro during the conflict. Our Australian Red Cross delegates had been there, both in Belgrade and Pristina, before the bombing started. They remained in Belgrade with the ICRC throughout, and they are still there. Had the ICRC not insisted on independence from NATO in Albania and Macedonia, it would not have been able to offer assistance to innocent victims in Serbia and Montenegro. You can see from this example why the ICRC maintained its traditional view of humanitarian action in the third Wolfsberg Forum, whilst acknowledging that there are new issues to be addressed.
The application of the traditional approach to humanitarian action is illustrated by the following timetable of events in Kosovo as they affected the ICRC:
24 March
Start of NATO bombing
29 March
Withdrawal of ICRC
13 April
Exploratory mission into Kosovo by Yugoslav Red Cross and Australian ICRC delegate Simon Brooks
26 April
President Sommaruga of ICRC meets President Milosevic
28 April
First Red Cross relief convoy to Kosovo
14 May
ICRC exploratory mission, led by Head of Delegation, Belgrade
24 May
Return of ICRC to Kosovo
3 June
G8 Peace Plan accepted by Yugoslav Government
9 June
NATO/FRY military agreement signed
11 June
NATO bombing ceases
13 June
First KFOR troops enter Kosovo
20 June
Final withdrawal of FRY troops
I arrived in Kosovo on 23 June, three days after the withdrawal of the Yugoslav army, and discussed with the ICRC delegation in Pristina the challenges they faced and the programs they were putting into effect. Our Australian Red Cross nurse, Mary Ann Kelly, was visiting hospitals in Kosovo to assess needs and fill in gaps. On the continuing journey through the countryside I was able to observe the burnt shells of most of the housing and the return of the first batches of refugees determined to secure their homesteads before the onset of the harsh winter. By the time I reached Albania a few days later most of the Kosovars had already crossed the border, despite concerns about their housing, their financial support, and the danger of landmines.
You can see from the timetable of events in Kosovo the modus operandi of the ICRC, and the value and limitations of their mandate. The ICRC were the last agency to leave Pristina, under dangerous conditions. The dialogue with the responsible power was conducted at the highest level a month later, to seek assurances of safety for the ICRC mission. A great deal of detailed negotiation was required to ensure practical implementation of this agreement, so although the Red Cross despatched a relief convoy two days after the Sommaruga – Milosevic meeting, it was almost a month before the ICRC could re-establish its presence in Pristina with a reasonable assurance of security and freedom to act in the field.
This delay caused a great deal of difficulty for the ICRC in its handling of the media, who wanted instant action and detailed information after the Sommaruga – Milosevic meeting. It was, as usual, essential for the dialogue between the ICRC and the Yugoslav authorities to be conducted in secrecy. The ICRC could not allow itself to be pressured into premature action before the necessary assurances of access and security were locked in. This was yet another example of the difficulties Red Cross faces in the conflict between preserving its mandate and gaining public support via the media.
Australian Red Cross faced the same difficulty with its role in Yugoslavia. Until the cessation of bombing, and indeed until I was able to make an on-site assessment in Belgrade on 21 June, I put a clamp on media coverage of the presence of Australian Red Cross delegates in Belgrade. It would have been very useful for fundraising purposes in Australia to describe the role played by Simon Brooks as the co-operation delegate for the ICRC, organising with the Yugoslav Red Cross visits to bomb sites in Serbia and Montenegro and arranging relief supplies. However to have Simon the subject of media attention would have jeopardised these essential operations, as well as raising security concerns about Simon himself.
That concludes my remarks this morning. I hope I have managed to describe what we have always in the past meant by humanitarian action, and on what it is based. I have also raised the question of the attempts to redefine humanitarian action, and the threat this poses for the ICRC in particular. I regret to report that this issue is far from resolved. This conference, and others like it, can contribute to its resolution.
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Endnotes