By Maria-Konstantina (Mariadina) Lili-Kokkori, researcher of the unit «International & European Law»

International NGOs attempt to provide emergency assistance and support solutions in case of emergency response like humanitarian programs that assist people in need of food, medical treatment, save passage through the sea, combating poverty etc. In this paper, it will be examined the terms of humanitarian space under attack, namely the definition of humanitarian space and the obstacles the humanitarian operations daily face. Moreover, it will beanalysed the applications of humanitarian norms in international law and the humanitarian norms as customary law. Afterwards, it will be examined the possible humanitarian protection mechanisms.

Introduction: the term of Humanitarian Space and the term of Attack – Threat

The definition of the “humanitarian space” is the ability to provide aid in an insecure environment, which puts humanitarian aid workers under threat. It is actually a space that humanitarian organizations operate and the first origin came from MSF organization,[1] although there is no clear definition written by Genève Convention or any Protocol.[2] Humanitarian space is the humanitarian action which is based in impartiality, neutrality and independence.[3]Except from MSF’s definition, Van Brabant tried to give a clearer outline for the term, by describing a place in which Genève Conventions are being respected by all, the space is protected from fighting and this action space is only for humanitarian organizations.[4]For this reason, the humanitarian response and action can be effective when all principles are well respected and when there is no threat, which is happening when IHL principles are not respected.

Although humanitarian aid assistance is supposed to be neutral and independent from political and state acts,[5] it is true that humanitarian aid workers during their mission have been harassed, expelled, kidnapped, and even attacked, injured and killed and still the number of attacks on aid workers is rising. Thismeans that victims from human rights violations or any crisis’ victims have to face not only the disaster or conflict but alsothe violation of their right to receive vital assistance due to humanitarian space’s attack. The obstacles that aid workers mostly have to face come from states and parties which they do not want or allow them to work independently. For example, during the refugee crisis, many locals or even the police, tried to stop and boycott the humanitarian organization’s work on the field, for the simple reason that they do not want refugees on their land. This has happened to Greece, Italy and Spain a lot during the last years. [6]

Moreover, although the creation and protection of humanitarian space is part of politicians’ responsibility, on the other hand, humanitarian action and the way this will be delivered is humanitarian organizations’ responsibility. Referring to humanitarian space, it is sometimes understood as a non-fighting zone.[7] But this is usually linked to military services. Despite the military means, humanitarian space can be created by peaceful means.[8]

Threat for the humanitarian space could be the human rights violation which is any action that violates the right of freedom and the right to live as a human being. Human rights violations include slavery, torture and denial of the freedom of thought and movement. Many of these violations still exist on a daily basis around the world.[9] Non state actors and human rights NGOs have played a major role in protecting human rights among the countries with their missions. NGOs are often the first that focus on issues like that. [10]Humanitarian space under attack is also a ‘’situation of no access’’, and many examples of the past are Rwanda, Sierra Leone, South Sudan, North Korea, Kosovo etc. Lack of security and access are also significant threats, with major consequences for the affected and vulnerable population.

Under these means, the challenge for humanitarian organizations is how to engage with all the actors that affect humanitarian space in order to ensure that these populations will get the effective assistance and protection they need. This means that they have to cope with military actors, international powers, and plenty other humanitarian organizations, when all are able to provide any kind of assistance.[11]

The application of humanitarian principles in international law

The body of law regarding international human rights and humanitarian issues has exploded in the last decades. International Humanitarian Law is a part of public international law, which is concluded of treaties, customary law, principles and norms.Humanitarian assistance can play an important role in the development of the country if it is properly coordinated and responds to real needs. All donors, states, authorities and non-state actors should keep in mind the following principles for an effective humanitarian assistance.[12]

Everyone has the right to life, liberty and security of person. The first principle of humanity provides that human suffering must be addressed wherever it is found, with particular attention to the most vulnerable in the population. The second principle stands for dignity of all victims that must be respected and protected. Humanitarian aid must be provided on the basis of need, without discrimination. This leads to the fact that humanitarian assistance is independent and autonomous and the only purpose is to relieve and prevent the suffering of crisis victims, and that humanitarian aid must not favor any side in an armed conflict or other dispute. Humanitarian actors must not take sides or engage in controversies of a political, racial, religious or ideological nature.This context is under the principles of neutrality and independence. [13]

According to Article 2 of European Convention on Human Rights, ‘’Everyone’s right to life shall be protected by law’’.[14]Moreover, the Charter of Fundamental Rights of the European Union provides that ‘’everyone has the right to life’’, and prohibits ‘’of torture and inhuman or degrading treatment or punishment’’.[15]

Humanitarian principles provide guidance to ensure that humanitarian action can be distinguished from the activities of other actors and thus is not considered improper interference in States’ domestic affairs.It also helps to ensure access to affected populations as well as the safety of humanitarian personnel and aid workers.

Humanitarian protection mechanisms

There have been established many legal instruments than the humanitarian principles, all adopted addressing the human rights violations and offering the protection of law to these vulnerable populations and humanitarian aid workers. For this reason we shouldexamine the international human rights and humanitarian adjudicative and other enforcement mechanisms that use and accept these legal instruments,  starting by saying that the UN’s human rights and humanitarian enforcement mechanisms are either UN treaty or UN Charter based. Within the UN enforcement system, there are diverse organs, such as courts and tribunals,committees, special procedural mechanisms, working groups, rapporteurs, experts, and representatives.

Starting from the UN Mechanisms, these are the ICJ, for which it has to be said that only considers cases between countries and/or intergovernmental organizations (e.g., World Health Organization, UNICEF). Individuals or nongovernmental organizations (NGOs) cannot bring cases to the ICJ. The International Criminal Court,[16] the International Criminal Tribunals for Yugoslavia[17] and Rwanda,[18] and the other hybrid criminal courts only consider cases prosecuted by their respective prosecutors. Individuals cannot bring private prosecutions. However, these criminal tribunals do consider amicus curiae briefs from NGOs and other nongovernmental entities.[19]

However, there are other also adjudicative bodies with quasi-judicial powers that have been established by treaty. Before these bodies, individuals can bring cases against state’s parties to the respective treaties creating these bodies. However, these quasi-judicial bodies can only “recommend” certain measures. They cannot “order” state’s parties to comply with their findings. Other UN bodies or procedures have little or no adjudicative power. However, recently the UN Working Group on Detention has begun issuing legally reasoned decisions to develop the international law governing detention.

The opinions issued by these quasi-judicial bodies do provide declaratory relief that is essential for developing the corpus of international human rights and humanitarian law for the UN Security Council and other tribunals with stronger remedial powers. Such “soft law” has “hard law consequences” through other international enforcement mechanisms.

These are the Human Rights Committee,[20] the Committee on the Elimination of Racial Discrimination,[21] the Committee against Torture,[22]and the Committee on the Elimination of Discrimination against Women.[23]

Although there are numerous human rights and humanitarian declarations, standards, and treaties, presently only five treaties have established either a court or a quasi-judicial body for considering cases: (1) the Treaty of Rome (or ICC Statute) that established the International Criminal Court; (2) the International Covenant on Civil and Political Rights(ICCPR)with its Optional Protocol that established the Human Rights Committee; (3) the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment that established the Committee Against Torture; (4) the Convention on the Elimination of All Forms of Racial Discrimination that established the Committee on the Elimination of Racial Discrimination; (5) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women established the Committee.

Concluding remarks

Protection for humanitarian organizations and actors in the field can be ensured by full respect for their specific mandates and roles, dialogue with all local stakeholders and respect for local traditions, customs and sensitivities. In turn, donors and political actors also have an important role to play. Europe is committed to contributing to the preservation of the humanitarian space and changing the outlook and have to respect humanitarian workers when delivering assistance, and also EU guidelines have to promote compliance with International Human rights law and humanitarian law in a specific and effective matter. Humanitarian organizations need to create access and protect humanitarian space with respect to humanitarian principles and norms, to protect the ‘’right to life’’ of all humans in danger and assist them to survive, and their responsibility is to remain independent to address the consequences of violence.

References

[1]RonyBrauman had first said that used the term as ‘’space for humanitarian action’’

[2]The Geneva Conventions of 1949 and their additional Protocols.

[3]Ulrike von Pilar, Humanitarian Space Under Siege – Some Remarks from an Aid Agency’s Perspective, Backgroundpaper prepared for the Symposium „Europe and Humanitarian Aid – What Future? Learning from Crisis“, 22 and 23 April 1999 in Bad Neuenahr.

[4]Van Brabant Koenraad, Managing Aid Agency Security in an Evolving World: The Larger Challenge, available here [last accessed 20/05/2019].

[5]KristalinaGeorgieva , The humanitarian space increasingly under threat, European Union, Humanitarian Aid,  2010, available here. [last accessed 18/04/2019].

[6]Order from the Italian Government to the Rescue Boat “Mare Jonio” not to transfer refugees to Italy under the pretext of terrorism actions.15 April 2019, available here. [last accessed 02/05/2019].

[7] Pugh Michael, “The Role of Armed Protection in Humanitarian Action”, in: Final Report of the Seminar on Humanitarian Action, Perception and Security, Lisbon, 27.-28. March 1998, pp. 60-71.

[8]Ulrike von Pilar, Humanitarian Space Under Siege – Some Remarks from an Aid Agency’s Perspective, Backgroundpaper prepared for the Symposium „Europe and Humanitarian Aid – What Future? Learning from Crisis“, 22 and 23 April 1999 in Bad Neuenahr, p. 7.

[9] Reference, What are examples of human rights violations?, available here. [last accessed 02/05/2019].

[10] Dinah L. Shelton, Advanced introduction to International human rights law, Edward Elgar, 2014, p.293.

[11]Humanitarian Policy Group, Humanitarian Space: Concept, Definitions and Uses Meeting Summary, Humanitarian Policy Group, Overseas Development Institute 20th October 2010, p. 7.

[12]Pan American Health Organization.Humanitarian assistance in disaster situations:A guide for effective aid. —Washington, D.C. : PAHO, 2000.

[14]Article 2, European Convention on Human Rights, available here

[15] Article 4, Charter of Fundamental Rights of the European Union, available here.

[16]The International Criminal Court (ICC)- Art. 5(1), Statute of the International Criminal Court, U.N Doc. A/CONF.183/9 (17 July 1998).

[17]The International Criminal Tribunal for the Former Yugoslavia (ICTY), available here.

[18]The International Criminal Tribunal for Rwanda (ICTR), available here..

[20]Human Rights Committee, available here.

[21]Committee on the Elimination of Racial Discrimination: The Convention on the Elimination of All Forms of Discrimination against Women was adopted in 1979 and entered into force in 1981, available here.

[22]Committee against Torture: The Committee against Torture (CAT) was established under Article 17 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The convention was adopted by the UN General Assembly in 1984 and entered into force in 1987, available here.

[23] Committee on the Elimination of Discrimination against Women, available here.