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The Right To Humanitarian Assistance
Naval War College Review, Autumn, 2000 by Yoram Dinstein
It is impossible to assert, at the present point, that a general right to humanitarian assistance has actually crystallized in positive international law. Such a general right, had it consolidated, could be invoked in all circumstances: in peacetime (either in the face of endemic problems of famine, malnutrition, and disease, or-perhaps especially-when natural disasters occur) as well as in the course of armed conflicts (either international or internal). In reality, however, there is no clear-cut right under existing international law to humanitarian assistance in peacetime, not even when natural disasters strike. To the extent that the right to humanitarian assistance is vouchsafed by binding norms of international law (customary or conventional), this is so only in certain contexts of armed conflict. [2]
During an armed conflict (whether international or internal), the issue of humanitarian assistance arises solely as regards the indispensable needs of the civilian population. That is to say, first, that when offered or requested, humanitarian relief must be confined to civilians-it cannot be extended to combatants. Second, relief consignments can include only essentials, such as food, water, medications, clothing, bedding, and means of shelter. Clothing, bedding, and means of shelter are of particular relevance to refugees and displaced persons, but all civilians in a devastated area (including those with roofs over their heads) may be in dire need of food, water, and medications.
There are principally three scenarios in which the issue of humanitarian assistance may come into focus in armed conflict (whether international or internal).
* A belligerent party controlling the territory inhabited by civilians possesses the essential provisions required and, given good will, could distribute them without undue difficulty to meet the demand. Yet, it pursues a deliberate policy of denying supplies to those in need (primarily, enemy civilians or persecuted minorities).
* Essential provisions are available to a belligerent party that is desirous of distributing them to the civilians in need, but distribution is obstructed by the enemy.
* Essential provisions within the territory controlled by a belligerent party are generally scarce, or the distribution system has collapsed owing to the ravages of the armed conflict.
In the first two instances, the situation can be remedied by the belligerents themselves (acting alone or in tandem). In the third, humanitarian relief can come only from outside sources-neutral states or charitable nongovernmental organizations--which must gain access to the afflicted area.
RIGHTS AND OBLIGATIONS
It is useful, at least from the perspective of juridical theory, to distinguish in armed conflict between a right of the civilian beneficiaries to demand or obtain humanitarian assistance and a right of states (or impartial humanitarian organizations, like the ICRC [International Committee of the Red Gross]) to insist on providing such assistance. [3] Should it be recognized that civilians have a right to demand or obtain humanitarian assistance, it is necessary to pinpoint the party bearing the corresponding duty to render that assistance. In the first two instances mentioned above, a duty can be imposed by international law on one or another of the belligerent parties. In the third instance, the situation is more complex. Surely, civilians do not have an absolute right to demand relief from the outside, applicable erga omnes (that is, vis-a-vis the entire international community). In other words, it would be absurd to contend that every state in the world is duty bound to come up, on demand, with relief aid to civilians embroiled in any armed conflict, wherever it is raging. [4] However, if relief is offered by a neutral state (or an impartial humanitarian organization), civilians may have a right to insist that shipments reach their destination, and belligerents may have a corresponding duty to enable free passage. Moreover, the neutral state may have a right vis-a-vis the belligerents-and, as circumstances dictate, vis-a-vis other neutral states through whose territories the shipments must be routed--to expect that relief consignments will actually be allowed to get through to the civilian beneficiaries.
SETTINGS FOR HUMANITARIAN AID
No customary norm has so far crystallized in the international law of armed conflict to establish a general right to humanitarian assistance (of whatever type) solely because provisions are scarce. It is, therefore, proposed to address here different factual settings arising in armed conflict. Each presents its own problems and its own solutions. These discrete settings are: occupied territories, siege warfare, maritime blockade, aliens in the territory of a party to the conflict, general relief supplies from the outside, and noninternational armed conflicts. Additional issues to be discussed are germane to enforcement measures and the responsibility of the Security Council of the United Nations.
