Document Type
Article
Publication Date
2001
Publication Information
31 Israel Y.B. on Hum. Rts. 183 (2001).
Abstract
The international community is in the midst of a fourth wave of legal development with regard to the rights, duties and remedies associated with humanitarian assistance to victims of non-international armed conflict. This wave is part of a larger development affecting most aspects of international law at the beginning of the 21st century. International actors, in particular, non-governmental organizations (NGOs), have challenged the accepted categories of international law in almost all fields, including international humanitarian law. In international humanitarian law, NGOs are primarily challenging the traditional requirements of neutrality and consent in the distribution of emergency aid to victims of armed conflict. Challenging neutrality, some NGOs report on the human rights and humanitarian law abuses of parties to armed conflict. Challenging the need for consent, some NGOs take the position that relief must reach victims regardless of whether persons in authority or control consent. At the same time, practice is indicating that NGOs have new duties directly under international law to remain impartial, which means not discriminating among those in need, and they have a newly emerging legal duty to do no harm. New means of enforcing these rights and duties are also emerging, so that we can well conceive of an NGO bringing suit to enforce its rights or being held accountable for its duties in a national court. This article, however, is not directly concerned with newly emerging humanitarian law - a fourth wave of Geneva law. Rather, the purpose is to establish the current law. The article's conclusion is that customary law has moved beyond Common Article 3 of the 1949 Geneva Convention and in some respects beyond the 1977 Additional Protocol II.3 We also have indications that the pace of change may be slowing. The law we have today respecting humanitarian assistance is likely to be with us for some time to come. To make this case, the article traces the development of humanitarian assistance in non-international armed conflict, starting with the 1949 Geneva Conventions as the first wave. The second wave came with the drafting of the 1977 Additional Protocols, especially Protocol II. The third wave emerged with the end of the Cold War and the parallel development of globalization. The third wave emerged in a decade known as the era of civil war. As a result, a significant amount of practice has driven the emergence of a fourth wave of law on humanitarian assistance. We may even be glimpsing the first signs of a fifth wave, visible in the indications of retrenchment or pulling back from unconstrained growth of international law rights and duties. The article shows the evolving meaning over time of the legal definition of "humanitarian assistance". As a working definition at the outset, we began by looking at the law related to providing "material indispensable to the survival of victims". We looked at who could provide this material, in what circumstances, to whom, in what manner, and what legal consequences followed from denial of legal rights or failure to observe legal duties.
Recommended Citation
Mary Ellen O'Connell,
Humanitarian Assistance in Non-International Armed Conflict: The Fourth Wave of Rights, Duties and Remedies,
31 Israel Y.B. on Hum. Rts. 183 (2001)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1855
Comments
Abstract from introduction.