Principles Matter: Humanitarian Assistance to Civilians under IHL

The provision of relief to civilians in armed conflict is a sensitive activity, subject to specific regulation in IHL treaties. Challenges emerged on the ground have questioned the comprehensive nature of this legal framework and generated debate on the concept of humanitarian assistance itself, the role of different kinds of actors (local/external, governmental/nongovernmental, armed/unarmed) in providing it, and the value and meaning of the principles traditionally associated to it—humanity, impartiality, neutrality, independence. This research, examining the evolution of State practice and opinio juris, provides a comprehensive analysis of the legal regime applicable to the provision of relief to civilians in armed conflict and the different categories of actors involved in it, identifying answers offered by international law (primarily IHL) to issues emerged in practice. It is argued that humanitarian assistance is a well-defined and limited concept under IHL. Rules on this issue have been subject to progressive development, e.g. those on the protection of humanitarian workers in non-international armed conflict, but State practice has revealed that sovereignty remains important, and the principles of humanitarian assistance continue to embody the balance acceptable to States between military necessity and humanitarian considerations. No right to access or to provide humanitarian assistance without consent from the Parties concerned has developed, including no right to provide relief in non-international armed conflict in territory controlled by non-State armed groups without State consent. Participation in the provision of humanitarian assistance by local and external actors is not prohibited, but the level of protection they enjoy depends on their position under IHL. Different regimes are applicable to distinct armed actors (belligerents/peacekeepers/external armed forces/private security companies) but in all cases respect for the principle of distinction is central. In general, special protection for relief actions and actors remains connected to respect for the principles of humanitarian assistance. This has been confirmed by belligerents’ reactions to the increased engagement of humanitarian organisations in protection, as the second essential component of humanitarian action: belligerents have claimed their entitlement to require respect by humanitarian personnel also for the most contested principle—neutrality, meaning non-interference in hostilities and even abstention from involvement in politics.