ISSUE 125 : Jul/Aug - 1997 - Australian Defence Force Journal

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SOLDIERS BEARING GIFTS27The ICRC differentiates between the use of forceas a means of imposing the passage and delivery ofrelief supplies and the use with prior consent of armedescorts for humanitarian purposes 37 . It takes the viewthat the obligation incumbent upon States to respectinternational humanitarian law together with theprotection to be afforded to the protective emblemmeans that the possibility of obtaining consentthrough dialogue can never be ruled out 38 . However,this is not to say that the ICRC is not willing to callupon UN forces in specific situations, such as thetransfer of prisoners through territory where theirlives may be at risk, where the lives of its delegatesare threatened or where military logistical support issought 39 . The Somalia experience represented aprecedent for the ICRC in that it had recourse toarmed protection by clan representatives 40 for its foodconvoys in circumstances where State consent couldnot be obtained.iv) Aid Agencies and the Employment of Locally-Hired PersonnelLocal personnel are often aware of the prevailingconditions for which outside estimates or proceduresare inappropriate. However, humanitarian aidworkers become exposed to extortion or blackmailwhen carrying out their tasks. On the other hand, theraison d’etre of non-governmental organisations isthat they are independent from the institutions,including military resources, of a foreign government,and indeed armed escorts imply the existence ofmaterial which is worthy of protection 41 .The employment of locally-hired gunmen posesproblems in terms of the responsibility of the use offorce being attributed to that organisation. MédecinsSans Frontiéres (MSF) and other “secondgeneration” health care agencies are less constrainedby the passive consequences of neutrality but at thesame time risk losing the permission to pursue theirmission. For example, in the “extreme circumstances”of the genocide in Rwanda – the systematicextermination of the Tutsis and the seizure of aidsupplies to finance the war effort – MSF was willingto override its neutrality to insist upon a humanitarianvolte-face 42 .Part B: The Position of Armed Escortsfor Humanitarian Convoys under the1949 Geneva Conventions and the 1977Additional ProtocalsThe fundamental premise under the Conventionsis that “relief actions for the civilian population whichare of an exclusively humanitarian and impartialnature and which are conducted without any adversedistinction shall be undertaken subject to the consentof the High Contracting Party concerned” 43 (emphasisadded). Where the resources of the occupied territoryare inadequate the Occupying Power is bound tounconditional acceptance of external collective reliefand must facilitate it “by all means at its disposal.” 44The consignments consist in particular of foodstuffs,medical supplies and clothing but are not limitedthereto if they have the character of relief supplies.The free passage of consignments is the“keystone of the whole system” 45 in that they beallowed to pass through the blockade and not subjectto seizure. However, the State granting free passagecan inspect the relief supplies to verify that they donot contain material that may be used for a militarypurpose (such as weapons and munitions) but in nocase can this right be abused in order to unduly delaythe forwarding of relief or impede the manner inwhich the supplies are distributed. Nevertheless, theFourth Geneva Convention provides that the passageof relief supplies may be regulated according toprescribed times and routes. The Occupying Powercannot “divert” relief supplies, which is understood ascovering any change to its destination of any kind,and which must remain an absolute exception 46 . To doso requires the concurrent satisfaction of threepreconditions: urgent military necessity; the interestsof the population; and supervision by a ProtectingPower 47 .The three-pronged criteria for relief actions –humanitarian, impartial and non-discriminatory –were formulated with a view to explicity prevent anypretext for interference in the conflict 48 . Only on thisbasis would the Parties to that conflict and each HighContracting Party allow and facilitate the rapid andunimpeded passage of all relief consignments,equipment and personnel. The 1949 Conventions and1977 Protocols were not envisaged to cover thecontemporary phenomena of the hybrid betweenarmed military vehicles and collective relief convoys.For example, protection whilst searching for,removing and transporting injured civilians is onlyafforded to “persons regularly and solely engaged inthe operation and administration of civilianhospitals” 49 (emphasis added).Although Article 21 of the Fourth Conventionprovides that convoys of vehicles conveyingwounded and sick civilians, the infirm and maternitycases “shall be respected and protected”, such a trainis to be designated by the distinctive Red Crossemblem and therefore not the blue and white “UN” or“UNCHR” marking. The suggestion that the UNAgencies or the ICRC shall be responsible for the
28AUSTRALIAN DEFENCE FORCE JOURNAL NO. 125 JULY/AUGUST 1997United Nations relief convoyinternational coordination of the relief action wasspecifically omitted from Article 70 of the FirstProtocol, thus preserving the role exclusively for theParties 50 . The insertion into paragraph 1 of Article 70such that relief actions are subject to the agreement ofthe Parties concerned was accepted on the basis that aParty “refusing its agreement must do so for validreasons, not for arbitrary or capricious ones” 51 .The respect and protection from attack owed tofixed establishments or mobile medical units shall notcease unless they are used to commit outside theirhumanitarian duties acts harmful to the enemy 52 .Significantly, the following conditions do not deprivesuch establishments from protection 53 :i) that the personnel are armed and use the arms intheir own defence orii) that in the absence of armed orderlies, the unit isprotected by a picket or by sentries or by anescort (emphasis added).Finally, it should also be noted that the provisionsof the Conventions “constitute no obstacle to thehumanitarian activities which the ICRC or any otherimpartial humanitarian organisation may, subject tothe consent of the Parties to the conflict,undertake…” 54 .Part C: Three Controversial PolicyIssuesi) Using the Military Force of Armed Escorts toPush Humanitarian Convoys Through ArmedBlockadesa) The Theoretical Legal PerspectiveThe right of the High Contracting Party toprescribe the technical arrangements under whichpassage of humanitarian aid is allowed is oftenidentified as the source of a frustrated humanitarianmission. Under customary international law the use offorce is not the appropriate method for ensuringrespect for human rights. In the Nicaragua case, theCourt held 55 that “the protection of human rights, astrictly humanitarian objective, cannot be compatiblewith the mining of ports, the destruction of allinstallations, or again with the training, arming andequipping of the contras”.On the other hand, the Preamble to the UNCharter states that armed force shall not be used savein the common interest. Collective or individual
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ISSUE 125 : Jul/Aug - 1997 - Australian Defence Force Journal

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