Method

Plenary discussion
Presentation/lecture
Reading
Group work
Case study

Timing

1 hour 50 minutes

Materials

PowerPoint Slides or Overhead Transparencies 6.1 to 6.17
Handout 6.1: "Convention on the rights of the child: Article 2"
Handout 6.2: "Exercise on UNICEF and humanitarian access"
Handout 6.3: "Case study: The implications of recognition of rebel factions"
Reading 6.1: "Humanitarian access and working with non-state entities"
Video projector for PowerPoint presentation, or overhead transparency projector
Flipchart and markers

Preparation

Make copies of the handouts and the reading for all participants. Prepare for the PowerPoint or overhead transparency presentation.

Activities

Activity 1
(5 minutes)
Review the session objectives (Overhead Transparency 6.1).

Activity 2
(10 minutes)
Open the session with a discussion on humanitarian access. Ask the plenary the following questions:

• Why may authorities be stopping humanitarian actors from entering the territory of a state (therefore preventing them from delivering humanitarian aid to the civilian population in need)?

• What arguments could you use to negotiate access?

• Why is access essential?

Write participants’ answers on a flipchart as you lead the discussion. Make sure that the following points are covered during the discussion.

The issues behind access

The basic legal principle as far as humanitarian relief goes, is that the state authorities carry the primary burden for delivering such relief. Relief societies are called upon to play an auxiliary role by assisting the authorities in their task.

Sometimes humanitarian actors may be stopped from entering the territory of a state and may therefore not be able to deliver humanitarian aid to the civilian population in need. The authorities may be stopping aid for various reasons: stopping aid may be linked to political, military or economic interests. On the legal level, the tension here is between the state sovereignty and the rights of the individual.

Arguments to negotiate or re-negotiate access come, however, from both the human rights and humanitarian law frameworks. The humanitarian actors argue on their part that the humanitarian need and the human rights situation is such that they must gain access to the people in need. The state on its part, because of political, military, and other interests argues that as a sovereign state it has the right to stop humanitarian organizations from operating on its territory.

Access to the civilian population in need raises a number of concerns for humanitarian agencies, one being that of credibility and accountability. Access is essential when it comes to administering, monitoring and evaluating relief programmes. For example, if the agency is not able to monitor how the humanitarian essentials are distributed and how the civilian population benefit from them, it is difficult to maintain credibility with donors when reporting on how donor money has been spent. In addition, it would be difficult to ensure that you are doing little or no harm with the aid you are bringing in, or that the aid is not going to the warring parties.

Activity 3
(5 minutes)
If you have expert knowledge on the subject matter, you can make a presentation on humanitarian access using Overhead Transparencies 6.2 to 6.6. Or, you can distribute Reading 6.1: "Issues" to participants and ask them to read Part 1.

Sovereignty

Very particular to international law is the position of states and their sovereignty. Article 2(1) of the UN Charter states that "[t]he Organization is based on the principle of the sovereign equality of all its Members." Article 2(7) goes on to say "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State..." Thus, the traditional viewpoint has been that the state has the exclusive right to control matters that are within its domestic jurisdiction. You should be aware that claiming that a situation is within a state’s domestic jurisdiction is the most commonly used argument to deny access.

The right to access derives directly from the right to assistance, because providing relief assistance implies a safe access to the population. The World Conference on Human Rights reaffirmed in the Vienna Declaration and Programme of Action (1993); "the right of the victims to be assisted by humanitarian organizations, as set forth in the Geneva Conventions of 1949 and other relevant instruments of international humanitarian law" and called for "the safe and timely access for such assistance".

(Overhead Transparency 6.2)

Access and human rights law

The most usual counter arguments refer to the fact that if states have signed on to international agreements they should also be willing to undergo international scrutiny in their undertakings. By ratifying treaties, states have agreed to be bound by them. In addition, the World Conference on Human Rights in 1993 declared the following:

"The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community."

This statement, although not part of a legally binding instrument but a declaration, is a clear indication of where international human rights law is moving.

(Overhead Transparencies 6.3 and 6.4)

The Convention on the Rights of the Child is the only human rights treaty to explicitly mention a right to humanitarian assistance in its provisions. The problem with Article 22 is, of course, that it is only applicable to refugees, and that internally displaced children have to rely on more general provisions as found in the Convention. Internally displaced children often lack both protection and assistance and thus do not realize the fulfilment of either their civil and political rights, or their economic, social and cultural rights.

(Overhead Transparency 6.5)

Article 24 of the Covenant on Civil and Political Rights has little to add that could not be found in the general provisions of the Convention on the Rights of the Child. However paragraph 1 of that Article may prove useful in situations where Article 22 of the Convention on the Rights of the Child is not applicable in that "[e]very child shall have [...] the right to such measures of protection as are required by his status as a minor". Measures of protection as required may arguably differ from situation to situation, and could provide for some additional textual protection for the internally displaced children.

Article 38 of the Convention on the Rights of the Child makes special reference to humanitarian law, and states in para. 4 that states must take measures for the protection and care of children in armed conflicts. Such care must necessarily include humanitarian assistance.

The Covenant on Economic, Social and Cultural Rights (CESCR) also provides useful arguments in Articles 11(1) and 12(1), which provide for a right to adequate standard of living and a right to enjoyment of the highest attainable standard of physical and mental health. As the CESCR may not be derogated from, these provisions remain applicable in all situations.

(Overhead Transparencies 6.5 and 6.6)

Should you be dealing with access issues in the context of internal displacement, a most useful argument may be built on Principle 25(2) of the Guiding Principles, which provides for a right of humanitarian organizations to offer their services. The Guiding Principles go on to state that: "Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance."

(Overhead Transparency 6.7)

Activity 4
(5 minutes)
Distribute Handout 6.1: "Convention on the rights of the child: Article 22". (If you are not making a presentation, you could distribute the handout while participants are reading.) Ask participants for examples from their experience in different countries. Have they encountered problems accessing displaced or refugee children? How did they argue to obtain access? Be prepared to share examples from your own experience, or that of others you know about.

Activity 5
(10 minutes)
Continue your presentation using Overhead Transparencies 6.8 to 6.11 (or ask participants to read Part 2 of Reading 6.1).

Access in international humanitarian law

The following are some of the legal arguments that can be useful in a situation where humanitarian actors have been denied access. However, not all are applicable in all types of situations, and it is important that you have understood or refer back to the chapter on international humanitarian law, which explains in some detail the applicability of different provisions.

International armed conflicts:

Under international humanitarian law, humanitarian organizations have the "right to initiative" during international armed conflicts. The "right to initiative" means that humanitarian organizations have a right to inform states of humanitarian needs and to offer assistance without being invited to do so. However, providing humanitarian assistance is always subject to the consent of the parties to the conflict in an international armed conflict, and to the state authorities in an internal conflict.

Article 70 of Protocol I addresses the issue of relief action on territory under the control of a party to the conflict in favour of civilian population. This article states that "each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party." This provision applies in a situation where the parties to the conflict have already accepted the services of international humanitarian organizations.

(Overhead Transparency 6.8)

Non-international armed conflicts:

Part VI of Protocol II provides protection for the civilian population in Article 14:

"Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population..."

If the situation is such that a warring party is using the denial of access to humanitarian aid as a weapon of war and the civilian population is starving as a result, then this is a violation of Article 14 of Protocol II. Articles 17 and 18 of Additional Protocol II are also important in that they provide standards on shelter, hygiene, health, safety and nutrition, as well as a right to initiative by relief societies. Article 18(2) provides as follows:

"If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as food-stuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned."

This provision is similar to the right to initiative as found applicable in international armed conflicts above. UNICEF has played an important role in many armed conflicts, serving children in need according to the principles of impartiality and neutrality. Some scholars claim that a state practice has evolved, saying that UNICEF should have a right not only to initiative, but even a right to intervene without consent on the behalf of children. As a matter of fact, practice to promote days of tranquillity as first done in El Salvador has since been carefully followed and adapted in other situations such as Uganda, Sudan, Iraq and former Yugoslavia.

(Overhead Transparencies 6.9 and 6.10)

Additional Protocol II makes reference to human rights in an humanitarian instrument for the first time by stating in preambular paragraph 2: "Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person." This may at a first look not seem to be a very important statement, but in fact, it provides the advocate with a link between humanitarian law and human rights law.

Additional Protocol II makes reference to human rights in an humanitarian instrument for the first time by stating in preambular paragraph 2: "Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person." This may at first look not seem to be a very important statement, but in fact, it provides the advocate with a link between humanitarian law and human rights law. With the adoption of the statute for the International Criminal Court, this link has become even stronger and clearer, since many violations traditionally regarded as human rights law now have been recognized as crimes against humanity or war crimes. Such is, for example, the issue of disappearances, which traditionally has been seen as a human rights issue.

Article 4(3) of Additional Protocol II provides special protection for children. Similar provisions are found in the Convention on the Rights of the Child, which generally will be more useful in terms of applicability, but 4(3(e)) may be useful in negotiating children as a zone of peace. It states:

"Children shall be provided with the care and aid they require, and in particular measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being."

(Overhead Transparency 6.11)

Activity 6
(15 minutes)
Divide participants into groups of five or six. Distribute Handout 6.2: "Exercise on UNICEF and humanitarian access".

Answer key

Drawing upon the materials above, one has to weigh the arguments about sovereignty against the human rights situations and humanitarian needs on the ground against each other. Certainly, through advocating days of tranquility and similar activities, UNICEF is becoming one of the main players in complex emergencies to intervene even if the government is fairly reluctant. While there is no single right answer to the question whether the statement is absolute, it appears that significant pressure for the provision of humanitarian aid can be placed on the government when the situation is such that action is urgently called for. The international support that the concept of child rights has gained in recent years is also part of the move towards placing less emphasis on state sovereignty.

Activity 7
(10 minutes)
Introduce the activity saying that in this segment, you will cover non-state entities (or ask participants to read Parts 3 and 4 of Reading 6.1). Explain the following:

Non-state entities

One of the characteristics as presented in the very first chapter of this module was that typical to today's conflicts is that there is no or little state authority. When humanitarian organizations get involved in complex emergencies, the organizations often have to work with governments that do not have effective control over certain territories as well as to work with rebel movements, freedom fighters, and so on (in this module called non-state entities) who are holding part of a country. Working with non-state entities (NSEs) means entering into a kind of legal vacuum, and therefore finding practical solutions to the problems on the ground cannot be emphasized enough. The various areas of law that we have discussed are applicable as follows:

Domestic law

International law has to be incorporated into domestic law so that violations of it or failure to abide by it have practical legal consequences. Indeed, it should be recalled that the incorporation of international treaty rules into domestic law not only constitutes a treaty obligation, but also has the advantage of making international treaty provisions applicable internally by attaching them specifically to domestic law and structures. Under international human rights law, states have to make certain practices criminal under national law in order to ensure that their courts have jurisdiction over violations. In this way human rights violations may lead to criminal prosecutions.

The situation becomes more difficult in a rebel held territory where there is no recognition of the domestic authorities that granted the law. However, the domestic law still remains in force as long as a separate state has not been created and the law can still be enforced if, for example, the rebels are pushed back and law and order restored. If, on the other hand, the rebels overthrow the government the interpretation of who committed crimes will differ.

(Overhead Transparency 6.13)

Human rights law

NSEs are not subject to the provisions of human rights treaties law per se as they do not have the legal status required to sign onto the treaties as state parties do. The traditional concept of human rights is grounded in an understanding that these rights are held by individual vis-a-vis the State and create legal obligations on the State of both a positive and negative nature to ensure the full enjoyment of those rights. Human rights law does not create legal obligations for individuals, such obligations must be part of national law. For example, it is normally cited as a short-coming of international human rights law, that it does not explicitly address domestic violence.

However, recent developments show that individuals can be held liable for certain acts which are held criminal under international law. Such is, for example, the establishment and prosecuting of individuals before the International Criminal Tribunals for former Yugoslavia and Rwanda as well as the adoption of the statute for the International Criminal Court. Certain acts committed by individuals can attract international criminal responsibility regardless of whether the individual acts on behalf of a state or not. Particularly strong candidates for rights that may trigger responsibility on the international level are, for example, rape, enslaving people and the taking of hostages. You can read more about the International Criminal Court in the section on international humanitarian law.

Steps may also be taken for NSEs to agree with international organizations that certain international instruments are applicable in the territory where the NSE is the de facto government. This has been done, for example, in the case of Southern Sudan, where the Sudan People's Liberation Army (SPLA) has made a commitment to the Convention on the Rights of the Child and international humanitarian law by signing an agreement with Operation Life Line Sudan. The International Committee of the Red Cross (ICRC) plays a significant role in disseminating humanitarian law and convincing non-state entities to declare that they will abide by it. It is therefore important to coordinate this type of work with the ICRC. In this context it is important to note that signing onto such agreements must be followed-up by the strengthening of local capacities and structures so as to be able to monitor human rights violations.

International humanitarian law

In situations where international humanitarian law applies armed groups are bound by provisions of this body of law. This is because traditionally international humanitarian law was designed as being binding not only upon States but also upon Non-State Entities and the individuals belonging to them. For instance, Common Article 3 of the Geneva Conventions obliges the parties to a non-international conflict to respect certain minimum standards. This article is also part of international customary law, and it therefore makes no difference whether a state or non-state entity has officially recognized the applicability of this article. In addition, the Security Council has on several occasions reaffirmed that those responsible for breaches of international humanitarian law should be individually accountable.

(Overhead Transparencies 6.14 to 6.16)

Activity 8
(15 minutes)
In this activity, you will cover the issue of recognition. Explain that:

Some governments raise objections to UN assistance or presence in areas held by non-state entities, or even meetings between the UN and non-state entities. The worry may be that UN presence legitimizes the authorities that are present in that area but are not part of the government, or that it will be a step forward for claims of self-determination for rebel movements active in the area where humanitarian assistance is needed. Basically, the position of international humanitarian law as found in Common Article 3 is that the activities of humanitarian actors with non-state entities should not be seen as carrying any form of recognition. UN Agencies are not empowered to grant "recognition" in any legal sense of the term. Nevertheless, this issue is raised time and time again for UNICEF staff.

Distribute Handout 6.3: "Case study - the implications of recognition of rebel factions", then ask participants to work in pairs or triads to answer the questions in the handout.

Discuss participants' answers in plenary.

Answer key

First of all it is important to reiterate the basic principle that dealing with non-state entities will not lead to the recognition of such entities. Humanitarian activities simply look at the needs no matter what the political setting and respond to those needs. A balance has to be kept between agreeing to provide humanitarian assistance on the one hand and demanding that the rebels improve their human rights record on the other. Building capacity is fine, as long as it includes capacity to improve human rights on the ground and follow-up to human rights violations. From a humanitarian imperative perspective, the humanitarian need must guide decisions of this sort, in other words, if there is a need for aid on the ground, it is for humanitarian organizations to respond to that need and not to engage in political developments. Openness is a key in this type of decision-making, so as not to be used as a scapegoat for political inaction. If you decide not to engage with the new rebel movement, base your decision on a human rights provision or on a humanitarian principle, for example that engaging with this entity puts at stake your impartiality and that it is resulting in discriminatory distribution of aid . If you are open about the decision, you preempt the discussion about whether your action was partisan or not. If the decision is based on a legal principle, the aid agency will not be violating its code of neutrality.

Criteria that commonly arise in the delivery of aid relate to the issues of access, safety of staff and convoys, ability to monitor distribution, ability to ensure that aid is not discriminatory, sensitivity on the part of aid workers to local traditions and laws, employment of local {and sometimes international) staff, etc. Should you wish to give further examples, you may refer to the agreements in the Closing Session.

Activity 9
(5 minutes)
Show Overhead Transparency 6.17. Explain the following:

Practical considerations on how to work with non-state entities

• It is important to keep contact with the various factions and their leaders at all times. Sometimes it may not be possible to meet with them in person and then it may be necessary to keep contact through trusted intermediaries. There may be certain groups or factions that it would be unethical to deal with because of the type of activity they are engaged in. Otherwise, keeping up the contact is absolutely necessary for the humanitarian actors to understand the context they are working in, and in order to have access to the de facto regime in various areas if necessary to negotiate terms of humanitarian assistance, access, etc.

• Identify local structures and groups, and think of how relationships can be established with religious NGOs, youth groups, labour unions, etc.

• Disseminate international human rights and humanitarian law, demonstrate the importance of humanitarian principles to NSEs. Try to get them to sign onto these principles by means of written agreement. It will be the basis on which to work in the future.
• Strengthen local capacity in rebel held areas in order for the community to monitor human rights and report on violations. For example, establishing a strong network in the local community will almost certainly bring to your attention problems with access to humanitarian assistance. Although capacity building has a long-term value also for other reasons, this is the only way to follow-up on violations of humanitarian principles and to gain access to reliable information.

• Maintain a principled approach, i.e. always act consistently, impartially and openly to the extent possible, for credibility.

Activity 10
(5 minutes)
If you have not done so yet, distribute Reading 6.1 now. Wrap up the session referring back to the session objectives shown on Overhead Transparency 6.1.