By Brigit Toebes, Lecturer in international law, University of Groningen, Netherlands
The environment in which humanitarian assistance is provided has changed dramatically over the past decades. While most conflicts taking place in the world today are of a non-international character, there has also been a significant increase in the number of people in need in the aftermath of other emergencies and man-made and natural disasters. In such settings, the security of humanitarian staff has become a major issue, as well as the restrictions imposed on humanitarian assistance. In this post, I will discuss how the right to health offers an important framework for protecting humanitarian aid workers, their equipment and buildings, and the local population receiving the aid.
The primary body of law regulating humanitarian assistance is international humanitarian law (‘Geneva Law’). However, this set of rules only applies fully during international armed conflicts. As such, human rights law forms an important additional framework, in particular during non-international armed conflicts, emergencies, and disasters. Strongly linked to the provision of humanitarian assistance are economic, social, and cultural rights, as these rights are about securing individuals’ rights to basic socio-economic services (food, clothing, water, housing, and health care). A key right in such settings is the right to health, as it protects the delivery of medical services as well as other health-related services, including safe drinking water, adequate sanitation, and food.
When it comes to the applicability of these rights during all types of emergencies, economic, social, and cultural rights rights may not necessarily apply unconditionally. However, there are strong reasons to assume that States are under a legal obligation to guarantee a number of minimum entitlements under all circumstances, including emergencies. General Comment 14 on the right to health defines a set of core obligations or minimum entitlements that are to be guaranteed irrespective of a State’s available resources. These minimum entitlements include access to basic shelter, housing, and sanitation, and an adequate supply of safe and potable water, essential drugs, training for health personnel, as well as equitable distribution of all health facilities, goods, and services, and taking into account the principle of non-discrimination.
It is now broadly accepted that States and potentially other actors have duties to respect, protect, and fulfill human rights. Based on this, we can conclude that States on whose territory the disaster is taking place are under a duty to respect, protect, and support the delivery of health-related services by humanitarian aid workers. Duties to respect imply a duty to accept humanitarian assistance and not to obstruct humanitarian aid workers in the exercise of their tasks, either wilfully or through negligence. Duties to protect mean offering protection to humanitarian aid workers, so as to ensure that they can carry out their tasks safely and adequately. Finally, duties to fulfill imply ensuring the supply of medical aid, adequate food, and shelter to the maximum of a State’s available resources, in support of the humanitarian aid. Likewise, (developed) States that are in a position to assist have duties to provide international assistance and cooperation, as is pointed out in Article 2(1) ICESCR and General Comment 14.
Furthermore, as conflicts and emergencies may involve several non-state actors, varying from armed opposition groups to civil society organizations, the question arises whether the right to health can also bind such non-state entities. The Universal Declaration of Human Rights, by referring to the human rights responsibilities of all actors in society, provides a basis for underlining the human rights responsibilities of non-state actors. Along similar lines, General Comment 14 on the right to health, stresses that all members of society have responsibilities regarding the realization of the right to health. Armed opposition groups are an important and powerful force during an armed conflict and their activities can have a devastating impact on the lives and health of persons engaged in and affected by the conflict. An important factor for them to be bound by human rights law will be, whether they exercise an element of governmental functions and whether they have de facto authority over a population. Hence, when they do, they may have similar duties as the State duties mentioned above.
We may also want to look at the responsibility of humanitarian aid workers and their organizations. Independent aid organizations can be characterized as ‘non-state actors’ which according to General Comment 14 have duties to provide international assistance and cooperation, along with (developed) states. As independent organizations, their employees cannot be characterized as state agents; hence they do not carry direct responsibilities under human rights law. Nonetheless, they have to respect the ethical codes to which they have committed themselves throughout their training. Doctors among them are morally bound by the relevant medical-ethical codes; for example, the principle of ‘medical neutrality’ implies that medical aid is to be provided to everyone, irrespective of, for example, ethnicity or nationality.
Barber, Rebecca, Facilitating humanitarian assistance in international humanitarian and human rights law, International Review of the Red Cross, Volume 91, Number 874; June 2009, pp. 371-397.
Bellal A., Giacca G, Stuart C.M. , ‘International law and armed non-state actors in Afghanistan’, 93 International Review of the Red Cross 881, March 2001, pp. 1-33
Committee on Economic, Social and Cultural Rights, The right to the highest attainable standard of health, UN General Comment No. 14 (2000), UN Doc. E/C12/200/4, 11 August 2000.
Toebes, Brigit, ‘Doctors in arms: exploring the legal and ethical position of military medical personnel in armed conflicts’, forthcoming in Marielle Matthee, Marcel Brus, and Brigit Toebes, Armed Conflict and International Law, in Search of the Human Face – Liber Amicorum in Memory of Avril McDonald, TMC Asser Press / Springer, 2013 (in press).