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The legal frameworks: guidance and tools for humanitarian action

The provision of humanitarian assistance takes place in a variety of settings – under occupation, in international and internal armed conflicts, and in the event of natural or man-made disasters. Humanitarian needs are often extensive – as are challenges in delivering assistance. During the conflict in Darfur, for example, humanitarian personnel and vehicles were subject to military attacks. After the 2004 Indian Ocean tsunami, regulatory barriers to disaster relief hindered the effectiveness and efficiency of assistance.

International legal frameworks for humanitarian action not only provide guidance on how to address such situations, but can also serve as powerful tools in advocating for, and achieving, the protection of affected civilian populations. For instance, negotiations and arguments for access can be strengthened by reference to specific legal obligations of the parties to the armed conflict to permit access.

Concepts: overlapping areas of law

The frameworks comprise different branches of international law. The most prominent of these is international humanitarian law (IHL), which governs during armed conflict. The humanitarian principles of humanity and impartiality have a basis in IHL. In addition to regulating the means and methods of warfare, IHL outlines the rights and duties of parties to an armed conflict and the potential role of humanitarian agencies regarding assistance. Occupying powers were the only parties originally obligated to provide for humanitarian assistance. Over time, however, this obligation has been extended to cover other international and internal armed conflicts, largely through international customary law.

International human rights law, international refugee law and international criminal law can operate at the same time as IHL. They can combine to create a comprehensive and established legal framework for protection and assistance.

Challenges

Emerging framework for disaster response

International disaster response laws, rules and principles (IDRL) is a new area of focus targeting states and humanitarian agencies operating in disaster areas not subject to IHL. IDRL is a fragmented collection of treaties and non-binding resolutions and guidelines. It is a weaker framework than IHL: regulatory issues are therefore more problematic in the delivery of assistance in disasters than in armed conflicts. Progress has been made, however, with new guidelines and attempts to develop a more coherent disaster framework.

Non-state actors

The legal framework for assistance also remains unclear in other areas. One of these is the extent to which international law is binding on non-state actors – a particular challenge in non-international armed conflicts when armed groups control areas in which civilian populations are in need.

The responsibility to protect

In addition, although the ‘responsibility to protect’ has been recognised as an ‘emerging norm’, it has not developed into consistent state practice that could provide for legal interventions without state consent in order to protect civilians. This is evident in the different responses to the recent humanitarian crises in Libya and Syria, with action authorised in the former but not the latter.

Compliance and enforcement

Even in areas where the law is well established, compliance and enforcement are challenging. There are various methods and mechanisms to encourage compliance with IHL, such as military sanctions and disciplinary measures, fact-finding missions and individual complaints through human rights bodies. In recent years, international criminal law has emerged as an important mechanism for enforcing IHL by holding individuals to account for violations.