 We will address first the practical aspects of humanitarian principles. We will look at what their origins are, what is the definition of these principles, and more importantly, what is the use, the finality and the function of those principles, including as much as possible from a very operational perspective. We will have with the participants an exercise looking at some ethical dilemmas that humanitarian organisations can face and regularly face on the ground, and with the participants we will look at how those humanitarian principles can help humanitarian organisations to address and overcome those dilemmas or challenges that they inevitably face on the ground. I'm going to inject the legal dimension into the conversation. I'm going to start off by explaining the interplay between humanitarian principles and international humanitarian law, highlighting who the principles are addressed to, who international humanitarian law is addressed to, and also identify the sources of the humanitarian principles and instances in which they are specifically referred to in international humanitarian law. In the second part of my presentation I am going to outline the law regulating one specific type of humanitarian action, relief operations and situations of armed conflict, and I'm going to try and focus on two salient issues, the question of consent, whose consent is required before relief operations may be carried out, and secondly the circumstances in which such consent may not be withheld. The humanitarian principles, what we call the core humanitarian principles guiding humanitarian action are four. It's humanity, impartiality, neutrality and independence, and I will get into more details on this in a minute, but I wanted to highlight an important difference between the fundamental principles of the Red Cross and Red Crescent movement and the humanitarian principles. The fundamental principles of the Red Cross and Red Crescent are seven. They were adopted in 1965, I will get back to it, and they deeply influenced the rest of the humanitarian sector and indeed they were adopted later on as those four principles guiding humanitarian action. The difference is that we have those three additional principles within the Red Cross and Red Crescent movement that are voluntary service, unity and universality, and I will get back to this in a second. But before that, a few words about the origin of the principles. Those humanitarian principles were first appeared in substance on the battlefield of Sulphurino in 1859, which as you know marks the origin and the creation of the Red Cross and later on the Red Cross and Red Crescent movement and the Moridunno arriving on the battlefield of Sulphurino seeing like more than tens of thousands of people of soldiers wanted on the battlefield decided to mobilize people in the surrounding villages in this area of northern Italy to come to the help of the wanted soldiers and to do that without any discrimination regardless of the side of the soldiers and that's the very origin of this very important principle of impartiality which in a sense is about non-discrimination in the way we provide relief. It's only more than one century later really that those principles were formalized as we know them today. In 1965 at the 20th International Conference of the Red Cross and Red Crescent movement held in Vienna the seven fundamental principles of the Red Cross that I have mentioned before were formally adopted. However, they didn't come out of the blue all of a sudden in 1965. As I said, the first appeared somehow on the battlefield of Sulphurino but there was also the crystallization of one century of operational practice of field experience of the SRC and the broader Red Cross and Red Crescent movement. Afterward in 1991 through UN General Assembly Resolution 46182 those principles, the first four principles of humanity the first three principles actually of humanity impartiality and neutrality were consecrated or recognized in this resolution of the UN General Assembly as the principles that should guide humanitarian action and in 2003 through Resolution 58158114 the principles of independence was added to those three principles that were first recognized in 1991. Throughout the 1990s and then later in the 2000s those principles were increasingly recognized and embraced by the broader humanitarian sector NGOs, UN through the adoption of a number of codes of conduct NGO charters that embedded those humanitarian principles in the policy and practice of humanitarian actors and to mention but one I can mention the code of conduct for the international Red Cross and Red Crescent movement and NGOs in disaster relief which is signed by more than 500 non-governmental organizations which really embed those principles those four humanitarian principles and in the 2000s a number of regional organizations have also recognized those principles in their own policy documents such as the European consensus on humanitarian aid which was adopted in 2008 the eco was humanitarian policy that was adopted a few years back that also recognized the importance of those principles and so on and so forth I could mention some others but those are two that illustrate my point let's get to the definition of these principles first I like to when introducing the principles to show this pyramid that represents the seven fundamental principles of the Red Cross and not only the four core humanitarian principles as we know them because that's the way we understand these principles within the movement and we like to represent them through this pyramid because it reflects this notion of hierarchy within the principles all the principles do not have the same finality all the principles do not have the same value even though they are deeply interlinked and they should be used as a whole and basically I will stand up here humanity and impartiality were described by Jean-Piquet whom you know well because of the work he did on the commentaries of the Geneva Conventions Jean-Piquet also commented those principles of the Red Cross and he said that humanity and impartiality are what he calls substantive principles meaning they belong to the domain of the realm of goals this is the very essence of a humanitarian action this is what we aim for then neutrality and independence have a different character there are tools, there are operational tools for action that enable impartial humanitarian action which is our goal and then those three principles of voluntary service unity and universality that are unique to the movement the way they are at least understood within the movement are institutional in character they provide the institutional foundations within the movement to enable the application of the other principles just one example is unity the way we understand unity within the movement is that there should be one national society per country it should be open to all and it should cover the entirety of the territory and this is not the condition but it certainly facilitates enabled national societies to deliver impartial aid throughout the territory and by reflecting the diversity of the population ethnic, religious, cultural, social it also arguably enabled them to remain neutral or perceived as neutral should the situation deteriorate and the conflict break out in a given country now let's get to each principle relatively briefly but still humanity the essential principle of humanitarian action it sets the sole purpose of humanitarian action which is to prevent and alleviate suffering of people affected by humanitarian crisis but also to protect life and ensure respect for human dignity there are three important aspects that can be drawn from it first, humanity represented it represents a deep belief in the sacredness of human life and the equality of human beings so a corollary of this principle is the idea of non-discrimination that I have already mentioned in reference to Solferino then in our understanding of the principle of humanity within at least the DHRC it requires to work really in proximity with the people who are serving with the people who are affected by crisis and to develop a human relationship with them because it's more than delivering just assistance it's indeed about respecting their dignity therefore having this human relationship with them being able to listen to their concerns to understand their situation and to try to bring a response that is adapted but also culturally adapted and then the last important point is that humanitarian action encompasses not only assistance material assistance, health, food, shelter but also protection activities ensuring that people's rights under IHL under international human rights law refugee law and so on and so forth is respected impartiality, as I said impartiality is still a substantive principle it still belongs to the domain of goals and it's kind of corollary to the principle of humanity indeed this idea of non-discrimination which is one of the components of the principle of impartiality is key and is an integral part of this ideal of humanity and non-discrimination means to make sure that relief action will be given, delivered regardless of the political sympathy of people regardless of their race of the side they belong to their religion, their gender and so on and so forth and AIDS should be based only on needs on an objective assessment of needs which is this principle of proportionality it should be delivered based on the urgency and the severity of needs and then a third component of impartiality is the exclusion of personal bias it means that as an individual relief worker you have to put aside maybe your personal feeling toward one individual because he's a member of your family your cousin or because he's part of your same ethnic group but really try to address the needs only based on the proportionality of the needs and without any other discrimination then we get in the domain of means to an end, operational tools, neutrality when neutrality is defined within the Red Cross Red Cross movement it starts with this phrase in order to continue to enjoy the confidence of all so here we see that neutrality is almost utilitarian the finality is to gain the trust of people the confidence of people that enable us to deliver impartial humanitarian aid it has two main aspects one is military neutrality which is not taking side in hostilities but also making sure that the aid we provide doesn't support even inadvertently as much as possible any parties to a conflict and then there is the notion of the aspect of ideological and religious neutrality which is to abstain to engage in controversies of religious political nature to make sure that we do not antagonize any side but also any segment of the population in order to continue to enjoy the confidence of all and to enable us to to work on the field in proximity with the people and the corollary to neutrality is independence and independence is about maintaining the autonomy from any parties to any third party in a given conflict the political, economic or military interest of any party in a given conflict that includes in the HRC practice and the Red Cross Red Crossion practice to maintain some autonomy from the United Nations for instance in some context where the United Nations are deeply politically involved given the mandate given by the UN Security Council for instance it involves maintaining some autonomy from our donors, institutional donors, states and that result in our insistence for instance to get non-airmarked funding so that we remain autonomous in the way we direct the assistance and protection that we deliver. I realize that time is running so I will try to move on a bit more quickly to the function of the principle, the finality of those principles. As I mentioned those humanitarian principles provide both an ethical and an operational framework for humanitarian action. Humanity and impartiality provide this moral compass whereas neutrality and independence are really about enabling us in the field given the actual circumstances we operate in and given the politics of the situations in which we work to navigate those complexities and to deliver this impartial aid and indeed the neutrality and independence as mentioned before are really made to ensure acceptance by all and this is the foundation for this acceptance based access and approach to humanitarian action by working on the perception of people by ensuring that we are seen and perceived as neutral independent from any political or economic stakes we ensure the acceptance of the authorities of arms carriers of the communities themselves which itself is necessary to gain access not always enough but certainly a precondition to get access and that enable action that is relevant to the people so by working proximity with the people which is itself by making sure the aid and the programs that we deliver are relevant to the people it affects also positively the perception and then you have this kind of virtuous circle and for this dialogue is critical and dialogue with all parties concerned including non-state armed groups and for this it is important that in the first place we are seen as neutral and independent to have access to those different armed groups being governmental and non-governmental but this ability to have dialogue can be affected by for instance counter-terrorism measures or policies that would restrict the ability of humanitarian organizations to have a dialogue and to engage with those different groups the operational relevance of those principles and here when talking about the humanitarian principles we talk about humanity, impartiality, neutrality and independence and as far as the movement is concerned we have three other principles that form that are part of the seven fundamental principles of the International Red Cross and Red Crescent Movement but focusing on those four core principles that I just mentioned the operational relevance is huge and both provide a moral compass for humanitarian action that represents the motivation behind humanitarian action the objective of humanitarian action which is to alleviate suffering and to protect life and respect dignity of people affected by crisis and to do so in a non-discriminatory manner meaning regardless of the race, the religion the political allegiance or the gender but only based on the needs so those aspects, those fundamental aspects that give the compass for humanitarian action are encapsulated in the principles of humanity and impartiality then we come to the other principles of neutrality and independence that are much more operational in nature they are not ends in themselves not goals, there are means to an end means to implement impartial humanitarian action even in some of the most complex, polarized situations of conflict, of today's conflict and they remain as relevant as ever because indeed it's by being perceived as neutral from all parties to conflict by abstaining to engage in controversies of an ideological or religious nature that we manage to maintain the trust of the people, of the parties to conflict but also of the communities themselves that enable us to work in proximity with them and it's by being perceived as independent from other political or even economic security or military agendas that we can also ensure this trust and this acceptance which is the very condition to deliver impartial humanitarian aid I'm going to just try and set the scene a bit in terms of the interplay between humanitarian principles and international humanitarian law it's something that's extremely important to understand but also frequently confused and let's start with basic let's kick off by trying to agree on what they are IHL as you know is the body of rules applicable in times of armed conflict that regulates means a method of warfare protects those not or no longer taking direct part in hostilities it's directly binding on states and organized armed groups humanitarian principles, as Jeremy just pointed out provide guidance to those who wish to carry out humanitarian activity be it protection or assistance in times of armed conflict they're not binding and they're addressed to those who want to carry out relief activities what do the humanitarian principles aim to do as Jeremy pointed out, I see essentially two purposes first, promote a way of operating that provides assurance to parties to an armed conflict that humanitarian activities do not interfere in the conflict or provide an advantage to their opponent compliance with humanitarian principles makes it more likely that operations are going to be accepted by everyone and that they can be carried out in a manner that is unimpeded and also safe safe for those carrying them out and safe for the beneficiaries the second objective of the humanitarian principles is to ensure that beneficiaries received the assistance they need in a manner that is not discriminatory and that reaches those most in need principle of impartiality so this is what they are word humanitarian in both of them but they're different things with different purposes now let's look at them a little more closely and I find that there are two points that really help understand the interplay between IHL and humanitarian principles who they're addressed to and what their sources are so who are they addressed to IHL principally to parties to an armed conflict to states and to organized armed groups humanitarian principles to those wishing to carry out humanitarian action this seems pretty evident but it's often confused now if we look at some of the instruments that Jeremy just mentioned we're going to have confirmation of this so for example the proclamation of 65 sets out the fundamental principles on which Red Cross Action is based i.e. the action of the components of the movements the ICRC, the Federation and National Societies similarly within the United Nations context General Assembly Resolution 46182 lays down the framework for strengthening and coordinating emergency humanitarian assistance of the UN states that humanitarian assistance must be provided in accordance with the principles of humanity neutrality and impartiality so we have a resolution a General Assembly Resolution adopted by states but it's not about how states must behave it's about the behavior of those who want to provide humanitarian assistance we're running a bit late but we have a number of examples of how the Security Council has addressed humanitarian principles and it's interesting to see because as is the case on a number of other issues the Security Council is not consistent in the terminology it uses and often actually doesn't get things right in relation to humanitarian principles and calls upon state parties to comply with them I won't go through them now but perhaps we can go through them later so as I said the principles are addressed to those who want to carry out humanitarian action it's inaccurate and makes no sense to ask parties to an armed conflict to comply with humanitarian principles they have to comply with their obligations under IHL in times of armed conflict but it's not incumbent upon parties to an armed conflict to comply with the humanitarian principles however they must not prevent those carrying out humanitarian action from doing so in a principled manner that's the role of parties to an armed conflict vis-à-vis the humanitarian principles don't prevent humanitarian actors from operating in a principled manner admittedly some of the same values underlying humanitarian principles also underlies some of the obligations of parties to an armed conflict and you'll have seen the words I'm thinking in particular of humanity and non-discrimination these are words, concepts that we find in international humanitarian law and also in human rights law and also in refugee law but this doesn't mean that the parties to an armed conflict must comply with humanitarian principles IHL is not the source of the principles rather I think it's an indication of the importance of these values in times of armed conflict and how it is incumbent on a range of different actors to respect them in different ways so it's for those carrying out humanitarian action who should comply with the principles for the operational reasons we discussed earlier because it makes it more likely that they'll be allowed to operate if an unimpeded why do I say should because the principles are not binding or at least not binding per se and why do I say per se per se and this takes me to my second point which is the source of the humanitarian principles and also frequently there's an assumption that the source of the principles is international humanitarian law and this is not correct as Jeremy has just pointed out as far as the components of the Red Cross, Red Crescent movements are concerned the fundamental principles were proclaimed by the Red Cross conference in 65 the components of the movement must comply with these principles as a matter of internal movement obligations that's why they're binding of them and act in accordance with them however the conference itself is not the source of the principles we actually had an interesting conversation as to why this proclamation why this strange term why didn't it just adopt the principles it definitely laid down definitions of the principles that have been used since then by the movement and also beyond but it wasn't the source of the principles in fact as Jeremy also pointed out the fundamental principles were in fact already referred to in the Geneva Convention so 49 so while the Geneva Convention the additional protocols are not the source of the principles they do refer to them and at the moment I'm an academic I have time to do things like word searches, things that I'd love to do in my office job but can't so I did a word search for additional protocols to see which of the fundamental principles came up and neutrality comes up but essentially in dealing with states that are not parties to the armed conflict independence does not come up at all but it is humanity slash humanitarian and impartial that are the principles that also appear in IHL and when do we see these terms when IHL instruments identify particular tasks, particular activities that may be carried out by actors that operate in accordance with these principles and for the most part but not exclusively they relate to relief operations so just one example article 59 of the 4th Geneva Convention on relief operations in situations of occupation states and I'm paraphrasing I'm paraphrasing states that if the whole or part of the population of an occupied territory is adequately supplied the occupying power shall agree to relief schemes carried out by impartial humanitarian organizations so that's where we have a reference in IHL to the principles and there's a number of other ones I won't go into them now article 70 of additional protocol 1 article 18 2 of additional protocol 2 I'll come to these later and common article 3 which is actually broader in nature because it foresees the possibility of offers of services more broadly so assistance and protection being made by an impartial humanitarian body such as the ICRC so another reference in IHL to the principles so if we go back I have two minutes one minute and a half if we go back to my initial question are they binding what are the consequences of not complying with principles as a matter of law well an actor that doesn't comply with the principles doesn't benefit from the provisions in question and so here's one example article 70 of additional protocol 1 provides that if the civilian population is not adequately provided with certain essential surprise relief actions that are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken so what does this mean it means even if we're in a circumstance where there is a situation where there are civilians whose needs are not met the rules requiring parties to accept offers only come into play in relation to offers coming from parties that operate in a principled manner if a humanitarian actor does not operate in a principled manner in a manner that is humanitarian and impartial the state does not need to consider its offer of services so that's a bit the interplay between principles and IHL operating in a principled manner opens the door to specific provisions of IHL for those actors that operate in a principled manner who decides whether an actor operates in a principled manner good question it is essentially the party to whom the offers are made on what basis past practice definitely not lip service and thank you very much for the presentations this might sound somewhat heretical to a question to pose at the Red Cross here in Geneva but I was just wondering how negotiable the principles are okay humanity impartiality very much fundamental is there a possibility at all to add an additional principle I'm asking this question because the consultations here last week ahead of the World Humanitarian Summit in May next year and one proposal was to introduce a principle of subsidiarity which was heavily criticized by many but I was just wondering about how flexible the principles are in that regard whether there's a need for recognition of that particular principle and my second question was I'd love to hear more about how the Security Council has understood or misunderstood the principles thank you and we were actually at a meeting last week also on the principles and that very point about subsidiarity came up and I think we should go back to Jeremy's pyramid there because we've got three things that I think really are fundamental principles that guide the way we act the art that set out the values and then to me subsidiarity where does it fit into that that particular pyramid of operating and we mustn't confuse things there's a lot of operating modalities that we can agree would be useful in a particular context across the board if we all agreed to them but I don't think that they are at the same level as the actual humanitarian principles of humanity, impartiality neutrality and independence they're much more operational in practice in nature while I look for my Security Council language Yes just adding on are they negotiable can we add some principles to it and subsidiarity clearly I mean those seven fundamental principles as I said it's a set of principles that bind movement components and definitely in that regard we think that they remain relevant we carried out a number of workshops within the international movement this year and the anonymous conclusion was that there was no need to touch them we just need to always and be able to better apply them but then those principles have a certain flexibility as well as I said it's no dogma except maybe humanity and impartiality that is really the bottom line and I would dare to say that we see this as the bottom line for humanitarian action if you do not satisfy the principles of humanity and impartiality then you are not human Italian I would dare to say however neutrality and independence are more as I said tools and therefore there are circumstances in which there may be less critical to respect strictly like in a natural disaster when a military might be the only one able to provide enough planes like heavy heavy whatever infrastructures to address the needs what's the point not working with them yet we need to maintain some consistency and our number of natural disasters that happen in situations where there is also a conflict so it's not always easy but on subsidiarity maybe one last very quick point the way it was proposed in the context of the humanitarian summit it was just to remind everybody that maybe if there is something missing in those four core humanitarian principles it's this kind of institutional foundation that we have within the movement hence the idea of subsidiarity I don't know whether it's a good idea or a bad idea but it was to say well we should recognize that within humanitarian action some local actors sometimes have some comparative advantages not only for international actors but also the other way around and we should be very much aware of the ability of each to abide by those principles and recognize where the limits are and fully acknowledge what other actors can do in order to work in a complementary fashion on the security council point something I used to have to do in my old job at Archer in New York was to try and get the security council to adopt language on IHL on humanitarian principle that was accurate and relevant and it was interesting that in recent years it also turned to humanitarian principles and we could have a whole conversation as to whether it's a good idea for a political body like the security council to get involved in humanitarian principles that's another kind of one but what we found in fact again preparing for here I went through the language it had adopted recently and as is frequently the case it has just not been consistent nor necessarily accurate so I've got a PRST a presidential statement of 2013 where the security council calls on all parties to the conflict to respect the UN guiding principles of humanitarian emergency assistance so it's a bit odd calling on state parties to respect the principles but maybe there's a step missing which is state parties allow to operate in a principled manner we have language and I'm looking at security council resolution of 2013 where the council emphasizes the need for all parties to an armed conflict to uphold and respect the humanitarian principles uphold and respect maybe something's lost in translation but when I googled uphold it didn't help it means maintain, you don't maintain the principles I just want to add another one calling upon all parties to respect the impartial this is language I like actually calling upon all parties in the conflict to respect the impartiality, independence and neutrality of humanitarian actors this is in a resolution of last year on the DRC and that's I think the occasion on which the security council has got it most accurate call upon all parties to the conflict to respect impartiality, independence and neutrality of the humanitarian actors I will ask you for a few minutes and we don't have much time we'll take 5-10 minutes to put yourself in the skin of a director of operations of a major international humanitarian organization and you are not a legal advisor please forget about this for a few minutes and remember there is also rarely a clearly right or wrong and wrong that's the very essence of a dilemma so indeed do not hesitate to state what you think about those dilemmas your organization your director of operations has been active for yours in a country affected by civil war between the government and the rebellion in the remote west of the country your NGO has been able so far to maintain access although it regularly suffers from restrictions imposed by the government but it does have access as the violence increases the government faces growing international condemnation for its military tactics that severely impacts the civilian population maybe the use of torture for instance massively a petition has been launched by some NGOs asking for the government to be brought in front of the international criminal court and your colleague the director wants definitely your organization to sign the petition please by raising your hand do you think this is acceptable to sign this petition who thinks it's acceptable as a director of operations having the principles in mind nobody so raise your hand those thinking that it's unacceptable well close to consensus there are a few that are on the line not quite sure so maybe why do you see this as or in order to know why you think it's unacceptable mostly what principles are at stake in this instance and here I think we are getting to your question what are the principles at stake here neutrality impartiality is humanity at stake indeed all are at stake but maybe those that are the most directly at stake and maybe in tension and here we get to your question are certainly humanity and this kind of moral imperative to do something including to ensure greater protection of the civilian population that suffers and increasingly so in this conflict and then neutrality I mean somebody mentioned neutrality why is it at stake who would like to react on this I repeat maybe for those who haven't heard maybe it's a political issue and so that goes against neutrality but why is like seizing the international criminal court is it a political issue so I would say two things one there's a difference between the means and the ends so I think the ICRC's means neutrality means even though it is to advance justice and accountability and everything the way it works is under cover and not really publicly and so sort of engages with the parties and gets results that's one thing the difference between the means and the ends and the second thing is that although fighting impunity or ending impunity is not political in itself there are different stages of the international criminal process and for example if you see the ICRC actually I wanted to raise that as a question so it's nice that we have it now the ICRC's position on giving testimony in front of I don't know the ICTY etc there have been several very well known cases and that put the ICRC in a very difficult position so you can say that giving a testimony even a witness testimony can be political but because of this principle of neutrality the ICRC asked to be sort of alleviated from the legal completely legal obligation so if that's right within the absolutely criminal process of course it will be right at the first stage of petition where the criminal professionals or international criminal professionals still haven't said anything about it so isn't it that's a very important point that you raised I will come back to you in one second indeed for the ICRC considering that in the sense that neutrality and being perceived as a neutral party has in our action we indeed managed to get these immunities of testimony and you would use a more correct word than me in front of the ICRC and some international criminal jurisdiction and for us it's essential or critical in order to carry out our work but so thanks for bringing this up what I wanted to raise here is this typical dilemma between indeed humanitarian action and justice and both satisfy this ideal of humanity however justice as you rightly pointed out creates some tensions with our ability to be accepted by all I mean justice well the international criminal court for instance an indictment by the international criminal court may be perceived as a political act as it was in the past in some countries I mean you all have in mind Sudan certainly well this resulted in the eviction of this kind of situation resulted in the eviction of 16 or 17 non-governmental organizations Menu did you want to react? I was just going to this particular conversation struck me that perhaps we should have said something right at the outset which is what organizations should comply with the principles not every NGO should comply with them it depends what you want to do it's those wishing to carry out humanitarian action so provide relief carry out some very specific protection activities in the field if you want to carry those out it's a very good idea for you to comply with the principles and as you point out be seen be perceived as complying with them someone mentioned an NGO that engages in human rights advocacy obviously that strives towards the same end goal of promoting compliance with the law but it goes about it in a very different way it faces very different challenges it doesn't have operations in the field that a party that feels aggrieved by the way you've behaved can just interrupt so let's bear it in mind it's not as if they are principles of how NGOs should behave they are addressed and relevant to those who want to carry out particular activities that require them to be close to people in the field but I think this is a very interesting conversation that we're having on how different actors who have the same ultimate common goal of providing protection by compliance with the law should engage with accountability mechanisms we've mentioned the ICC ICTY what about sanctions mechanisms increasingly they are going to actors in the field to figure out not just how the sanctions whether the sanctions are having a humanitarian impact but also who are the violators who's committing violations if you are an actor in the field do you engage with them a very live question that different actors have a different reply to ICRC is very lucky I used to be ICRC it was very lucky it was very easy to say sorry but no when I was at the UN we were in a far more complex position because we have to cooperate with the ICC for example but we still have operations in the field how do you balance this? Right and that's precisely why it is so critical for organizations to be also honest about their own limitations as we said before being neutral and independent it's not an end in itself it enabled us to carry out our humanitarian mission and to do so in an impartial manner by being accepted by the parties in a given conflict when organizations either because of external constraints or because of institutional choices decide to take some positions for instance that would be at odds with neutrality is it not a humanitarian organizations anymore wouldn't be well placed to say that it might be that in their particular circumstances they have anyway a very restricted access they do not manage to have access and in their calculus they consider that in order to contribute to the protection of these people maybe yes that could help to this ultimate protection objective yet then we would expect those actors to be more honest and transparent about those decisions to recognize that in this particular case they are not seen and perceived as neutral and that they are not delivering this neutral and independent humanitarian action rather than contribute to this blurring of lines between organizations we are very diverse lot of actors and very complimentary too but with each one more or less not in the same position to abide by all those principles that we are discussing today I'm going to spend a few minutes outlining the law regulating one type of humanitarian action humanitarian relief operations the rules regulating humanitarian relief operations humanitarian assistance are simple and essentially the same in international and non-international armed conflict so primary responsibility for meeting the needs of civilians lies with the party to the conflict that has control over them I am grossly simplifying we could have a weeks seminar just on this so I'm going to grossly simplify if that party with responsibility to meet the needs of the civilian populations fails to do so states and international and humanitarian organizations may offer to carry out relief operations and I think this sequencing is important there's always a tendency by humanitarian organizations to want to rush in it's like hold on let the party to the conflict see whether it can meet the needs yes or no in the majority of cases the consent of affected states is required but may not be arbitrarily withheld there are two situations in which states have no latitude to with hold consent the first is situations of occupation and the second are situations where the security council has taken a binding decision imposing relief operations and I say imposing rather than authorizing because I don't want to have an unfortunate precedent where if the security council has not imposed them a party that can somehow say I have no obligation to allow them once relief operations have been agreed to all parties must allow and facilitate rapid and unimpeded passage of release consignments but they may impose technical arrangements under which such passage is allowed now normally operationally it is at this stage of the game that most of the problems arise a party to the conflict has said yes of course you can come in and carry out relief operations but in practice it makes it extremely difficult for the relief operations to be carried out that said in the few minutes that remain today I'm going to focus on two central legal questions that arise at an earlier stage of the process and that have received considerable attention in recent years the first question is I say consent is required but whose consent and the second question I've said is consent is required arbitrarily withheld what amounts to an arbitrary withholding of consent to offers to carry out relief operations another key legal question which has arisen with immediate operational consequences are what are the consequences when a party arbitrarily with holds consent can or unauthorized operations be carried out that is a question that's not addressed by IHL but rather by other bodies of international law and maybe something we can turn in to discuss later so first and foremost whose consent is required and here I'm talking about the initial green light to operate in a particular context it's clear this is required but it's less clear at least in relation to non-international armed conflict whose consent is required so if we look at international armed conflict article 70 of additional protocol one requires the consent of the parties concerned in the relief actions this is in the plural this position this provision refers to most notably the state party to the conflict in whose territory you want to carry out the relief operation their consent is required pretty simple the position in non-international armed conflict is more complex and in fact there are two different provisions that are of direct relevance to this the first is common article 32 of the Geneva conventions that I mentioned earlier and this provides that an impartial humanitarian body linked back to our principles may offer its services to the parties to the conflict it is entitled to offer them to either side the state and the organized armed group however this is as silent as to whose consent is required in order to carry out the relief operations some have interpreted article 32 as implicitly allowing relief operations to be carried out if the party to whom you have made your offer accepts it the consent of the other side is not required provided of course that your relief operations don't have to carry a transit through territory controlled by your enemy if you can get there directly some say all that is required is the consent of the party to whom you've made the offer I have to say I find it difficult to interpret the silence of article 32 in this particular way I think it really leads to a significant infringement of state sovereignty to say I've made an offer to the organized armed group I can reach the territory controlled by the armed group directly therefore your consent is not required at best this approach would only apply to the organizations the actors specifically referred to in common article 3 so impartial humanitarian organizations all other actors wishing to carry out relief operations would have to comply with the more stringent requirements in article 18 2 an article 18 2 of additional protocol 2 is more explicit on this point it requires the consent of the high contracting party concerned end of quote this appears to be a clear reference to the state party to the non-international armed conflict the high contracting party concerned however it has been suggested by some that a high contracting party that a state is concerned by relief operations only if they have to transit through territory under its control if somehow the territory controlled by the opposition by the rebel group can be reached directly from neighboring states the state is not concerned by the relief operations and therefore its consent is not required again I have to say I'm a bit of a positive dinosaur I have to say I find this interpretation of article 18 2 a bit problematic I have to say the suggestion that a state is only concerned by activities being carried out in its territory is not concerned by activities being carried out in its territory they can be carried out by neighboring states just is contrary to basic considerations of territorial sovereignty it just doesn't make sense to me also more literally this means that although we have a reference to the high contracting party concerned there may be instances in which in fact there is no high contracting party concerned which I think is counter intuitive reading of the express language of article 18 2 so where does this leave us I have to say in light of the silence of article 3 on this specific issue of whose consent is required and the specific reference to the high contracting party in article 18 2 to the state I think a view that gives due weight to general principles of international law relating to state sovereignty and also to a states obligations towards the civilian population would be to say that the consent of the state is always required even in relation to relief operations that can be carried out from neighboring states but that in those circumstances the state would have a narrower range of grounds for withholding consent they need to be much more closely and directly linked to the territory in question the territory under control of the opposition for example withholding concern out of concern withholding consent out of concerns that the relief operations could somehow legitimize the opposition would be arbitrary or cement its control of territory that would also be an arbitrary ground for withholding consent in those circumstances so my conclusion would be the consent of the state is always required but it's got a narrow range of grounds for withholding consent this is the law and I'm looking at our colleague to the operational realities what are the operational realities in practice whatever the law says it's you would not go and carry out relief operations without the agreement of all the parties to the conflict through whose territory you go because doing so would put you your operations and the very people you're trying to assist at risk so there's a very clear difference between the legal position and what you would do operationally which is a question that I wanted to go through with you today and is what amounts to arbitrary withholding of consent now even though we have very clear language in article 70, AP1 and article 18, AP2 that consent is required it was already understood at the time of the negotiations that parties didn't have an absolute and unlimited freedom to refuse to agree to relief operations a party refusing consent had to do so for valid reasons and I'm quoting here from the commentaries not for arbitrary or capricious ones which makes sense but the problem is that we don't actually find any definition of or even guidance in treaty law of what amounts to an arbitrary withholding of consent which is a point that has not been addressed by any national or international tribunal or human rights mechanism so let's try an unpack it and perhaps I'll share my thinking at the moment and then see if you can add other grounds I think it's very useful to look at international law more broadly not just IHL to see what is understood by arbitrary and human rights law in particular and also general principles like international law provide some guidance on the type of conduct that would be arbitrary and circumstances in which withholding consent would be arbitrary essentially it is in three situations first if it's withheld in circumstances that would violate a party's other obligations under international law towards the civilian population in question secondly if withholding consent violates the principles of necessity and proportionality and thirdly if consent is withheld in a manner that is unreasonable and just lacking in predictability or otherwise inappropriate now if we quickly look at the three different possible headings in turn when do you think that withholding consent could violate a party's other obligations towards the civilian population when it would violate human rights law and in particular right to life, right to health, right to normal circumstances of life like infrastructure and things like that any particular other provisions under IHL sorry that would be a circumstance exactly absolutely the prohibition of starvation of the civilian population so that's exactly the kind of thinking I intuitively started off from IHL and I said okay, sorry, go ahead and we also see connect with the grey bridge because sometimes the judicial guarantees are arbitrarily not provided but in case of humanitarian law it is the most and same as also in NIAC in common article three and I'm kind of focusing, I think you're looking more broadly at humanitarian action, I'm kind of focusing very much on relief operations assistance, so in what circumstances would saying no to an offer of assistance violate a party's other obligations under international law and yes under IHL it would be when the population is facing starvation and a party says no, relief goods cannot come in that's one example another example that comes to mind is withholding consent to medical operations, including on the ground that medical goods could be used to treat wounded enemy combatants. As you know the wounded and sick including enemy combatants must receive to the fullest extent practical and with the least possible delay the medical care required by their condition and no distinction may be made on the provision of health care other than on medical grounds. So with holding consent to medical relief on the ground that they could assist enemy combatants would violate this rule. The same medical goods are also likely to be needed for the civilian population and with holding consent in those circumstances would also violate civilians entitlement to medical care. Another possible ground is selective with holding of consent with the intent of discriminating against a particular group. So for example systematically rejecting offers of assistance for regions populated by ethnic groups perceived as favoring the enemy. This would be a violation of the principle of the prohibition on non-discrimination. So these have kind of plucked from IHL and then as you correctly said there's also international humanitarian law that is relevant. So with holding consent in situations that violates fundamental human rights most notably the right to physical integrity and also we mentioned economic social and cultural rights situations where it prevents the satisfaction of the minimum core of these rights. The rights to an adequate standard of living including food and water and health and medical services. That would be one another instance in which with holding consent would violate I've got one minute I'm going to get to the end and then you've got the first question. Would violate a state's other obligations. Would be arbitrary because it violates their other obligations. The second heading was withholding of consent in the violation of the principles of necessity and proportionality. And here I'm thinking of the principles of necessity and proportionality as expressed in international human rights law. So even where consent is withheld for a legitimate ground it'll nonetheless be arbitrary if it exceeds what's necessary in the circumstances. So limitations in terms of time, duration, location and affected goods and services must not go beyond what is absolutely necessary to achieve the legitimate aim. So while it might be acceptable perhaps at the outset of hostilities to say no hold on no relief operations coming in it would no longer be acceptable after one week or while it might be acceptable to say there is hot fighting in this particular area therefore no relief operations it wouldn't be acceptable to say and therefore no activities in the rest of the country. It's an ongoing assessment that needs to be carried out. And thirdly my third heading focuses on the manner in which consent is withheld and it would be arbitrary if it is done in a manner that's unreasonable or inappropriate or could lead to injustice or lack of predictability. And I suppose one very clear example of this would be circumstances where consent is withheld without providing any reasons for this. So it's not clear the process for providing reasons is not clear. Do you have to provide them to each individual actor that makes an offer? Yes or no? It's honestly not clear in the law. However what is clear is if there's a blanket refusal of accepting relief operations without the provision of any reasons this would be arbitrary. Why essentially it wouldn't allow us to even assess whether the grounds are legitimate yes or no. You just don't know why you are prevented from carrying out relief operations. So withholding consent without providing any reasons would give rise to a rebuttable presumption of arbitrariness. There's a question over there. I was interested in your opinion about the definition of the relief itself because if you look it from the IHL perspective and Geneva conventions we have the commentaries and there is more or less for the ICRC let's say at least. But if you include in the interpretation and definition of the relief supplies for the for the perspective of state granting the consent from human rights perspective I think through ICPR it's still okay because you will be talking about right to life and in human treatment but as soon as you go to social economic cultural sphere because of my country Georgia where I've seen this struggle in 2008 there was discussion how far we should interpret relief supplies after first month supply of food medicine moving hospital is okay but when we talk about capacity building for welfare or broadly you know defining right to life and medicine then it goes far beyond you know moving hospital and there was a tension between the international organizations as well as parties to the conflict should we consider this as a relief operation because as far as I remember actually some of the international organizations tried to push this idea and there was a battle not within the IHL realm but from the human rights interpretation perspective and it's interesting because there is no much written on that. That's a very good question and as you say the the threshold of IHL is actually quite low in it's essentially it's essential goods essential for the survival of the civilian population it's really not a very high threshold and obviously it's just a bottom line though there's nothing that precludes an actor who wants to try to carry out relief operations and beyond to try and persuade the relevant parties can I also carry out these activities but they're not specifically addressed by the law so the state would be entitled to not consent to them not agree to them even arbitrarily they're not covered by the law. I think you raise an important point in relation to human rights law because I've always felt there was a bit of a disconnect between IHL that sets a pretty high threshold of suffering you've got to be starving before it would be unlawful or arbitrary to withhold consent and human rights law where fine we've managed it to narrow it down to rights to physical integrity fine also pretty severe suffering but once you start looking at economic social and cultural rights you you're talking about an adequate standard of living including food and water health and medical services it opens it out quite dramatically I've tried to narrow it down by focusing on on the core I'm looking for the word the status of the core the minimum core of these rights but it's still pretty broad so that's that's just a question that sits uncomfortably I think between the potential range of rights and situations in which it would be arbitrary to withhold consent under human rights law and those where it would be equally unlawful under IHL. We have to keep in mind that the bottom line when we come back to the principles the bottom line for humanitarian action maybe what I don't know if to what extent you will agree with me on the statement but what qualifies relief action as humanitarian including in IHL is indeed this impartial character so in our view the bottom line for humanitarian action is definitely to respect those principles of humanity and impartiality that we have discussed today in order to do so well within the HRC and within the broader humanitarian sector it's acknowledged that being neutral being independent is critical in order to to achieve this objective of delivering impartial humanitarian assistance and protection and I'm missing the second part of my idea but that indeed as we discussed today it requires some efforts from human human organizations it is challenging it is rarely a right or wrong and so on and it requires a lot of honesty and and transparency by organizations in in doing so so dialogue with all is critical in order to to do so it's not about lip service to humanitarian principles it's about what you do how you operate and doing so in a consistent manner and with clarity so that everyone understands why you are doing something in a particular way or why you're not I think that's the key thing to emphasize about compliance with humanitarian principles