1. Introduction
In the summer of 2010, a fifty-nine-metre-long cargo ship, the MV Sun Sea, entered Canadian territorial waters. Carrying 492 Tamil Sri Lankan men, women, and children claiming refugee status in Canada, the ship was intercepted by Canadian authorities and escorted to Canadian Forces Base Esquimalt on Vancouver Island. After fleeing the Sri Lankan civil war, these individuals found themselves aboard a ship with deplorable living and safety conditions. Royal Canadian Mounted Police captain and witness Phillip Nelson said that they “were the worst of any vessel he had ever seen,” an account corroborated by Tamil witnesses aboard the ship.Footnote 1 Following the incident, Thampeernayagam Rajaratnam, Lesly Jana Emmanuel, and Nadarajah Mahendran were charged with human smuggling in violation of section 117 of Canada’s Immigration and Refugee Protection Act (IRPA).Footnote 2 While Rajaratnam, Emmanuel, and Mahendran had been involved in the organization and transport of these Sri Lankan migrants, they claimed before the British Columbia Court of Appeal (BCCA) that they should be excused from this offence based on a “humanitarian exception” to section 117 of the IRPA.
The legal implications of this situation are manifest. The transboundary nature of the incident involved evidence from a foreign police service, which raises hearsay concerns.Footnote 3 The invocation of the “humanitarian aid” defence gave scope for the BCCA to elaborate the humanitarian, mutual, and family aid exceptions to human smuggling,Footnote 4 acknowledged by the Supreme Court of Canada in R v Appulonappa Footnote 5 and B10 v Canada. Footnote 6 Subsequent cases such as Baleeyoos v Canada (Public Safety and Emergency Preparedness) Footnote 7 and R v Boule Footnote 8 relied on Rajaratnam in this regard. However, a crucial element of this case, which to date has remained largely unexplored,Footnote 9 is what it reveals about the “humanitarian principles” of humanity, impartiality, neutrality, and independence — insights that can have important implications for the laws of humanitarian assistance more broadly. Engaging with recent scholarship on the humanitarian principles, this article revisits the description of the bindingness of the principles as “relative.” Through a close reading of the BCCA’s Rajaratnam decision, this article moves beyond a discourse concentrated on international cases, United Nations (UN) resolutions, and organizational bylaws to consider the role that the decisions of national courts can play in both the interpretation and substantive development of these humanitarian principles in international law. As a subsidiary means for the determination of rules of international law, the decisions of national courts can play an important role in elaborating the legal meaning of the humanitarian principles. Moreover, as an expression of state practice, national court decisions can be integral to the crystallization of the humanitarian principles in customary international law.
The article begins by describing the four humanitarian principles. It considers their general meanings and how they emerge in the practice of humanitarian assistance. Section 2 then discusses the legal basis of the humanitarian principles. It presents a traditional view that the principles are generally binding as a matter of public international law before outlining the emerging critique of this view; that the bindingness of the humanitarian principles is instead relative (that is, binding only on certain actors in certain circumstances). Turning to Rajaratnam, section 3 provides a close reading of this decision and its treatment of the humanitarian principles. Finally, revisiting relativity, section 4 explores the broader implications of Rajaratnam for the applicability of the humanitarian principles in public international law. Far from being merely theoretical, and with diverse humanitarian crises ongoing worldwide, this applicability has wide-ranging implications for humanitarian practice. We begin by describing the humanitarian principles.
2. The humanitarian principles explained
In April 2025, UN Secretary-General António Guterres reiterated the UN’s position about humanitarian assistance in Gaza: “Let me be clear: We will not participate in any arrangement that does not fully respect the humanitarian principles: humanity, impartiality, independence and neutrality.”Footnote 10 These four principles appear as “the” humanitarian principlesFootnote 11 across regional treaties like the Kampala Convention Footnote 12 and soft law codes of conduct like the Sphere Standards. Footnote 13 Modified versions are found in the International Law Commission’s (ILC) Draft Articles on the Protection of Persons in the Event of Disasters (ILC Draft Articles) and Resolution 46/182,Footnote 14 as well as the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief. Footnote 15 They are also referenced in national public and private law regimes where “they operate within the framework of general or specific legal regulations imposing the principles upon [humanitarian actors] as a matter of law.”Footnote 16
As a set, the four humanitarian principles of humanity, impartiality, independence, and neutrality emerged from the Red Cross movement in the mid-1950s and a key commentary by Jean Pictet,Footnote 17 but, as individual principles, they have a richer history.Footnote 18 This section delves into the meaning of the four humanitarian principles and situates their importance in the practice of assistance. Considering their role from early conceptions of humanity, impartiality, neutrality, and independence as aspirational principles rather than “unbending and rigorous law,”Footnote 19 to being put forward by the UN Secretary-General as a sine qua non of humanitarian assistance, this section discusses the meaning of the humanitarian principles and how they animate contemporary humanitarian practice.
A. The meaning of the four humanitarian principles
The first humanitarian principle — humanity — is often considered a general principle or grundnorm of public international law.Footnote 20 It has a long legal history — stretching from Hugo Grotius’s allusion to obligations to give aid based on “laws of humanity”Footnote 21 to Fydor Martens’ foundational preambular clause in the 1899 Hague Convention, which provides for protections in war to inhabitants and belligerents stemming from “the laws of humanity and the dictates of public conscience.”Footnote 22 As a general principle, humanity has applicability during both armed conflictsFootnote 23 and times of peace.Footnote 24 In armed conflicts, Emily Crawford and Alison Pert suggest that humanity can be thought of as a “limiting factor,” offering outer boundaries to what is permissible in times of armed conflict.Footnote 25 Others like Yoram Dinstein,Footnote 26 Kjetil Larsen, Camilla Cooper,Footnote 27 and Gary Solis,Footnote 28 however, question whether humanity is in fact a binding legal principle. Dinstein, for instance, refers to humanity as an “extra-legal consideration” that may be “inspiring and instrumental” but does not entail an “obligation (or set of obligations) incorporated per se in positive IHL [international humanitarian law].”Footnote 29
In the context of humanitarian assistance, humanity has a particular meaning. It has been described as the “essential principle,”Footnote 30 with the commentary to the Humanitarian Charter noting that humanity is a principle that is “both universally shared and universally applicable,” acting as a moral foundation for humanitarian action.Footnote 31 While ostensibly a guiding moral principle, humanity is often expressed practically as the provision of assistance focused on protecting life and health, alleviating suffering, and safeguarding human dignity.Footnote 32 Some sources go so far as to suggest that preventing or alleviating human suffering represents a moral and ethical “humanitarian imperative”Footnote 33 with possible positive obligations.Footnote 34
Next is impartiality, which the UN Office for the Coordination of Humanitarian Affairs (OCHA) describes as humanitarian action “carried out on the basis of need alone, giving priority to the most urgent cases of distress and making no distinctions on the basis of nationality, race, gender, religious belief, class or political opinions.”Footnote 35 This principle is often expressed as covering several sub-principles, including non-discrimination,Footnote 36 proportionality, and impartiality proper.Footnote 37 Based on these sub-principles, relief should be provided on the basis of “differences in peoples’ needs” and not differences between peoples.Footnote 38 Impartiality is noted in sources like Common Articles 3(2) and 9/9/9/10 to the Geneva Conventions Footnote 39 and Article 18(2) of Additional Protocol II, which describe the provision of relief of an “exclusively humanitarian and impartial nature and which [is] conducted without any adverse distinction.”Footnote 40 This principle can further be found in bilateral peace agreements, like the Protocol on the Establishment of Humanitarian Assistance in Darfur, between the Government of the Republic of Sudan and the Sudanese Liberation Movement, which holds that assistance is “guided only by urgent distress” and is “provided regardless of ethnic origin, gender, nationality, opinions, race or religion.”Footnote 41 Interestingly, “impartiality in the implementation of humanitarian aid” is the only humanitarian principle mentioned in European Commission’s (EC) Council Regulation 1257/96 in outlining eligibility requirements for receiving EC financing.Footnote 42 Impartiality, ultimately, is a principle of action.Footnote 43 It manifests in the tangible, day-to-day activities of humanitarians, requiring them to provide aid strictly “on the basis of, and in proportion to, the need of the victims.”Footnote 44 Practically, then, impartiality is composed of the sub-principles of “non-discrimination, proportionality, and impartiality stricto sensu.”Footnote 45
Neutrality, the third humanitarian principle, is about not “taking sides,”Footnote 46 either in hostilities or “in controversies of a political, racial, religious or ideological nature.”Footnote 47 As Kubo Mačák sees it, neutrality exists as a “macro-level principle of abstention,” contrasting impartiality’s micro-level actionability.Footnote 48 It requires humanitarians to “remain ideologically free.”Footnote 49 Neutrality can relate to the actions of humanitarians. Giving material support to an armed group (like providing food aid to them in order to facilitate access to vulnerable populations), for instance, can be a non-neutral action (and, in the international criminal law context, can even be implicated in criminal liability, as Miles Jackson has illustrated in his article on “virtuous accomplices”Footnote 50 in international crime).Footnote 51 Neutrality can also relate to the statements of humanitarians — are humanitarians taking sides in what they say? It is harder to determine neutrality in instances where humanitarians remain silent in the face of sufferingFootnote 52 or express a “principled position, based on firm ideals.”Footnote 53 Unlike impartiality, Common Articles 3Footnote 54 and Article 9/9/9/10Footnote 55 to the Geneva Conventions are silent on the matter of neutrality. It is also a principle that has been the subject of theoretical, historical, and practical critiques from scholars who question its usefulness.Footnote 56
Neutrality is a “close relation” of impartiality.Footnote 57 As the International Court of Justice (ICJ) notes in its advisory opinion in Obligations of Israel, “the two concepts are related and neutrality plays a role in assessing the impartiality of the activities of humanitarian organizations.”Footnote 58 Yet, while impartiality and neutrality are “partially overlapping principles,” they should not be mistaken to be “synonyms.”Footnote 59 In Nicaragua, for instance, the ICJ referenced non-discrimination (which, as noted earlier, falls under impartiality),Footnote 60 in finding that the assistance was not humanitarian.Footnote 61 Its reasoning, however, describing assistance being provided only to the Contras and their dependents, reflects more the absence of neutrality.Footnote 62 One important distinction that is revealed by this common conflation is that, whereas impartiality addresses discrimination within groups, neutrality reflects picking sides between groups. In the advisory opinion in Obligations of Israel, the ICJ seemed to read neutrality into the concept of impartiality.Footnote 63
The fourth humanitarian principle — independence — describes humanitarian actors’ freedom from the influence of other actors like states and donors. The OCHA notes that “[h]umanitarian action must be autonomous from the political, economic, military or other objectives that any actor may hold with regard to areas where humanitarian action is being implemented.”Footnote 64 Independence is important to preserve operational flexibility, maintain unimpeded decision-making, and ensure that humanitarian needs are not subordinated to other objectives. Though independence is a core humanitarian principle within the International Federation of Red Cross and Red Crescent Societies’ Code of Conduct, it is omitted from numerous international normative instruments.Footnote 65 For instance, independence is absent from Resolution 46/182, which only lists humanity, neutrality, and impartiality.Footnote 66 Resolution 46/182 goes on to note that inter-governmental organizations and non-governmental organizations (NGOs) should “make a significant contribution in supplementing national efforts,”Footnote 67 suggesting an expectation of coordination with, rather than independence from, the state where a shock has occurred.
Similarly, the ILC’s Draft Articles list humanity, neutrality, and impartiality, but not independence, as humanitarian principles.Footnote 68 While several countries, regional bodies, and organizations — including the Czech Republic, Thailand, Ecuador, the European Union (EU), and the OCHAFootnote 69 — supported the inclusion of independence in the Draft Articles, a position recommended by the Special Rapporteur,Footnote 70 it was ultimately excluded from the final articles. Article 214 of the Treaty on the Functioning of the European Union, which articulates how the EU is to engage with humanitarian assistance, similarly includes impartiality and neutrality but omits independence.Footnote 71 Common Articles 3 and 9/9/9/10 to the Geneva Conventions do not demand that impartial humanitarian bodies adhere to the principle of independence.Footnote 72 Elsewhere, independence might be included as a humanitarian principle, but it is qualified or specified. For instance, the Jeddah Declaration of Commitment to Protect the Civilians of Sudan lists “operational independence” alongside the other principles of humanity, impartiality, and neutrality.Footnote 73
B. The humanitarian principles in practice
For humanitarians, adherence to these four principles can be challenging. Even the most principled humanitarians are often unable to adhere to all the principles all the time. The practice of assistance, in other words, regularly involves some level of compromise on the humanitarian principles. At a contextual level, it is important to acknowledge that the four humanitarian principles are “only very partially accepted outside the Western world.”Footnote 74 Chinese humanitarians have privileged principles like a well-ordered state and comprehensive development,Footnote 75 and Latin American humanitarians have favoured solidarity over neutrality and independence.Footnote 76 While, factually, humanitarian assistance is not the exclusive preserve of Western humanitarians, there is a risk that a strict adherence to the principles privileges Western humanitarians while crowding out others from more diverse cultures and countries.
At an organizational level, different types of humanitarians may depart from particular principles. A common schema for classifying humanitarians differentiates between classic/principled, practical/pragmatist, faith-based, and political/solidarist humanitarians.Footnote 77 In this schema, classic humanitarians are organizations whose work closely adheres to the four humanitarian principles. They are described as subscribing to narrower definitions of assistance centred primarily on life-saving or needs-based interventions, while being hesitant to work with government donors or advance political motives.Footnote 78 The International Committee on the Red Cross (ICRC), Médecins Sans Frontières (MSF), and Save the Children are common examples.Footnote 79 Practical/pragmatist humanitarians are more “action”-oriented organizations, focused on operational efficiency and more willing to stray from the humanitarian principles in order to achieve results.Footnote 80 They tend to be more willing instruments of their home governments’ foreign policies.Footnote 81 For instance, there is CARE International.Footnote 82 Faith-based humanitarians are organizations steeped in religious traditions. They have a long history of providing assistance that continues to this day.Footnote 83 Prominent examples include World Vision and Islamic Relief Worldwide. Finally, the political/solidarist organizations have broader definitions of humanitarian activities. Unlike the narrower lifesaving or needs-based focus of the principled humanitarians, the solidarists have more expansive mandates that often seek to address the “root causes of conflict” or vulnerability.Footnote 84 These organizations are more willing to take sides when providing assistance. Norwegian Peoples’s Aid is a notable example.Footnote 85
Based on this schema, the pragmatists do not necessarily align with the humanitarian principles of independence and neutrality. As actors more willing to reflect the foreign policies of their home governments, these actors might be more readily influenced by those states (thus, compromising independence) or more prone to assist a party to a conflict aligned with their home state (thus, compromising neutrality). Actors within the faith-based and political/solidarist categories may similarly align less well with the principle of neutrality. They might be quicker, for instance, to speak out against a party to a conflict involved in rights abuses or to provide aid to a resistance or liberation group (thus, compromising neutrality).
Beyond this schema of more established categories of humanitarian organizations, adherence to the humanitarian principles with less visible humanitarians is even more tenuous. Diaspora organizations committed to providing relief exclusively to a particular ethnic group might not exhibit the principle of neutrality. Local NGOs and civil society organizations who are guided by solidarity with vulnerable peoples may similarly depart from the principle of neutrality, and the pressure that local governments are able to exert on them may reduce their independence. Moreover, as these actors can have larger mandates than those typically associated with humanitarian activities — from state building to economic development — they can depart from narrower conceptualizations of humanity. Finally, informal or irregular actors — those individuals who help simply because they are thereFootnote 86 — give no guarantees that they will be impartial.
Humanitarian assistance as provided by states also puts the principles into tension. While states may endorse and promote the humanitarian principles as governing norms for humanitarian assistance,Footnote 87 their capacity to adhere to principles when serving as humanitarian actors diverges from the capacity of non-state humanitarians. Take independence, for instance. On one level, states are characteristically independent, conditioned by sovereign will and shaped by foreign policy interests. On another, however, static humanitarian entities — like Global Affairs Canada or the Australian Government Department of Foreign Affairs and Trade — are largely (if not entirely) conditioned by the interests of the states of which they form a part. As such, though states are competent to exercise a form of independence, it is a form of independence fundamentally distinct for the humanitarian independence that preserves operational flexibility, maintains unimpeded decision-making, and ensures that humanitarian needs are not subordinated to other objectives.
Turning from organizations to individuals, the humanitarian principles are more easily adhered to by international as compared to national staff. While individual humanitarians can, and often do, manage to adhere to the humanitarian principles for the purposes of their employment, various dynamics can complicate or compromise this capacity. Myfanwy James’s ethnography of humanitarian assistance in the Democratic Republic of Congo, for instance, discusses how domestic humanitarians are unable to shed their local identitiesFootnote 88 and are thus not perceived as being neutral and impartial, either by local actors or international staff.Footnote 89 For individuals who are local to a context, it is harder to escape (or be perceived as escaping) the politics of that context. These distinctions are particularly important given the composition of humanitarian offices. MSF’s field staff, for example, comprises 90 percent nationals.Footnote 90 Thus, even where an organization adheres to the four humanitarian principles, individuals within that organization may not be able to adhere to those principles.
The relationship between the humanitarian principles and the practice of assistance has come under increased scrutiny more recently with regard to humanitarian assistance in the Gaza Strip, particularly concerning the Gaza Humanitarian Foundation (GHF). Launched in May 2025Footnote 91 and wound down about six months later,Footnote 92 the GHF was a private humanitarian foundation established with support from Israel and the United StatesFootnote 93 to distribute aid in Gaza. The work of the GHF was widely criticized by states,Footnote 94 UN bodies,Footnote 95 and NGOs.Footnote 96 Some critiques focused on the GHF’s capacity to meet humanitarian needs,Footnote 97 its role in displacing existing aid structures,Footnote 98 or the legitimacy of privatizing humanitarian assistance.Footnote 99 Others concentrated on civilian safety and risk exposure at distribution sites;Footnote 100 the Office of the UN High Commissioner for Human Rights reported in July 2025 that “875 people [were] killed in Gaza while trying to get food; 674 of them … in the vicinity of GHF sites.”Footnote 101 Amidst these events, the GHF’s ability to deliver aid in a manner consistent with the humanitarian principles was a major concern.
A joint statement from Canada, Australia, New Zealand, and a number of European nations and institutions, for instance, acknowledged with respect to this “new model” that the UN and other humanitarian partners would “not participate in any arrangement that does not fully respect the humanitarian principles” and stated that “[h]umanitarian principles matter for every conflict around the world and should be applied consistently in every warzone.”Footnote 102 The UN Bureau of the General Assembly’s Committee on the Exercise of the Inalienable Rights of the Palestinian People echoed this sentiment, stating:
[The GHF] is an attempt to circumvent the UN and its agencies on the ground, foremost UNRWA [UN Relief and Works Agency], that have long delivered humanitarian aid and basic services in assistance of the Palestinian people in accordance with international law, including humanitarian law, relevant UN resolutions and the humanitarian principles of independence, neutrality, impartiality and independence [sic]. The GHF fails the test of the humanitarian principles.Footnote 103
Indeed, even Jake Woods, the initial executive director of the GHF resigned within weeks of the organization’s creation, stating that “it is clear that it is not possible to implement this plan while also strictly adhering to the humanitarian principles of humanity, neutrality, impartiality, and independence, which I will not abandon.”Footnote 104 Despite such criticisms, the legal significance of an actor providing assistance in a manner that does not adhere to the humanitarian principles remains in question. The next section explores this significance considering what, if any, is the legal basis of the humanitarian principles.
3. The legal basis of the humanitarian principles
The practice of humanitarian assistance points to a centrality of the humanitarian principles. Humanitarian organizations and individuals hold themselves out as adhering to these principles across a variety of contexts — from armed conflicts, to disasters, to refugee responses. But whether these organizations and individuals are under a legal obligation to adhere to the humanitarian principles is a different matter. This section considers what sources point to the bindingness of the humanitarian principles as a matter of public international law. It then presents a growing literature that frames the bindingness of the humanitarian principles as relative.
A. The humanitarian principles in public international law
If you ask an operational humanitarian actor if they understand the humanitarian principles to be binding on them as a matter of international law, you may well receive an affirmative reply. This presumption is not entirely without merit. The principles are referenced in various sources of international law, including regional treaties, UN resolutions, and soft law instruments. Recognition of the principles in two UN General Assembly (UNGA) resolutions has largely contributed to the perception that they are rooted in public international law. Resolution 46/182 in 1991 holds that “humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality,”Footnote 105 while Resolution 58/114 in 2004 reaffirms “the principles of neutrality, humanity and impartiality for the provision of humanitarian assistance.”Footnote 106 While UNGA resolutions are not binding in themselves, they can have certain legal effects.Footnote 107 Other references to the humanitarian principles appear in treaties with universal applicability, including the Geneva Conventions Footnote 108 and its Additional Protocols. Footnote 109
Certain of the humanitarian principles have also been referenced in ICJ judgments. At a general level, the Corfu Channel case took note of “elementary considerations of humanity, even more exacting in peace than in war.”Footnote 110 More narrowly, in the Nicaragua case, the ICJ followed a practical conception of humanity when considering whether the United States’ provision of “humanitarian assistance” to the Contras in Nicaragua constituted an unlawful intervention.Footnote 111 The Court found that this assistance was legitimate insofar as it was limited to life-saving and suffering alleviating provisions — like food, medicine, and clothing — and that it did not include weapons or equipment that could be used to cause injury or death.Footnote 112 And, yet, in the South West Africa case, the Court writes:
Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested — have an interest — in such matters. But the existence of an “interest” does not of itself entai1 that this interest is specifically juridical in character.Footnote 113
This quotation presents a more circumspect consideration of the bindingness of humanitarian considerations.
The most explicit reference from the ICJ to the humanitarian principles in relation to humanitarian assistance comes from the 2025 advisory opinion in Obligations of Israel. In this opinion, the ICJ took note of the criticisms levelled against the GHF and the allegations that its operations had been “inconsistent with core humanitarian principles.”Footnote 114 Still, the Court goes on to emphasize how the obligation to allow impartial humanitarian organizations like the ICRC stems from the civilian population being inadequately supplied.Footnote 115 An important implication, which sheds light on a common misconception, is that, if the GHF had been capable of adequately supplying the civilian population, their lack of adherence to the humanitarian principles would neither invalidate that assistance, nor would it establish an obligation on the part of Israel to allow impartial humanitarian assistance.Footnote 116 While humanitarians that do not act consistently with the humanitarian principles may, practically speaking, be unable to meet humanitarian needs, the focus of the obligation remains on meeting needs rather than on adherence to the humanitarian principles. This poses the question of whether adherence to the humanitarian principles is indeed an obligation under public international law?
Further, humanitarian principles have also featured in resolutions aimed at relieving humanitarian actors from the liability associated with sanction or counter-terrorism regimes — what are frequently called humanitarian exemptions. In the humanitarian assistance context,Footnote 117 humanitarian exemptions refer to carve-outs from particular laws’ punitive reach. While not a “term of art,”Footnote 118 humanitarian exemptions have been used across a range of contexts. The goal of these carve-outs is to enable humanitarians to provide assistance free from the fear of liabilities that contravening these regimes would normally entail.Footnote 119 UN Security Council (UNSC) Resolution 2664, for instance, makes reference to the “guiding principles of General Assembly Resolution 46/182 of humanitarian emergency assistance, including humanity, neutrality, impartiality and independence.”Footnote 120
B. The relative bindingness of the humanitarian principles
Pushing against any presumed universal applicability of the humanitarian principles, a small but growing scholarship has begun to frame their bindingness as “relative.” This literature includes Marc Weller’s “The Relativity of Humanitarian Neutrality and Impartiality,”Footnote 121 Mačák’s “A Matter of Principle (s): The Legal Effect of Impartiality and Neutrality on States as Humanitarian Actors,”Footnote 122 and Marina Sharpe’s “It’s All Relative: The Origins, Legal Character and Normative Content of the Humanitarian Principles.”Footnote 123
Weller’s article, a short piece from the 1997 Proceedings of the American Society of International Law Annual Meeting, considers the bindingness of the principles of humanity and impartiality. Weller argues that, contrary to the conventional view, the applicability of these principles is, in fact, relative. This relativity has both a legal and a contextual aspect.
Legally, Weller advances two ways in which the principles can become binding. The first is when the principles are integrated into international law-making processes — treaty obligations, bilateral agreements, and UNSC resolutions, for instance. In this case, the principles are relative in the sense that they are only binding within the scope of those general or specific instruments and only insofar as they are imposed by those instruments. The second is where particular organizations integrate the principles into their internal corporate constitutions or codes of conduct. The principals thus become a constitutional requirement for that organization but only for that organization. This legal quality is thus “entirely a matter of internal regulation [and] a violation of these principles would not necessarily be a violation of international legal obligations.”Footnote 124 Contextually, Weller proposes that, in different contexts, the meaning of neutrality and impartiality will differ, as will what is demanded of actors held to these principles. He writes that the “standard of action demanded by the principles of neutrality and impartiality varies according to the context of application.”Footnote 125 How humanitarians are obliged to adhere to these principles in situations where a state has consented to assistance differs, for instance, from where assistance has been compelled by a UNSC resolution.
Like Weller, Mačàk’s 2015 article in the International Review of the Red Cross focuses on the principles of impartiality and neutrality. But, whereas Weller is most interested in the applicability of these principles to international and non-government humanitarians, Mačàk considers the applicability of these principles to states when they are acting as humanitarians. Ultimately, Mačàk argues that the bindingness of impartiality and neutrality is contingent — these principles are only binding insofar as they are incorporated into legal instruments. Looking across sources of public international law — treaty, custom, and general principles — Mačàk finds that, while impartiality and neutrality “have important indirect effect on the conduct of States,”Footnote 126 they do not stem from international law. In treaties, Mačàk contends that allusions to these principles in sources like the Geneva Conventions and their Additional Protocols is “limited and mutually distinguishable,” with implications for some actors and no implications for others.Footnote 127 As far as states are concerned, adherence to the principles is desirable but not legally required in treaty law. Under customary international law, though the UNGA and Western states have endorsed impartiality and neutrality, Mačàk advances that such endorsements have not had such a character as to establish opinio juris. Moreover, in providing humanitarian assistance, which is often politicized, conditional, and motivated by foreign policy objectives, state practice does not suggest that impartiality and neutrality are a customary requirement. Finally, stemming from the internal constitution of the Red Cross movement and not national legal systems, Mačàk proposes that impartiality and neutrality cannot be classified as general principles of international law.
Finally, and most comprehensively, Sharpe addresses the relativity of humanitarian principles in a recent piece in the International Review of the Red Cross. Footnote 128 Building on Weller and Mačàk, Sharpe considers the legal bindingness of the principles of impartiality and neutrality as well as humanity and independence. She argues that these four principles neither have a basis in international humanitarian law (IHL) specifically nor in public international law more generally. While the principles are often conflated with IHL due at least in part to their “perceived moral desirability,”Footnote 129 unlike IHL, adherence to these principles is not obligatory. Nonetheless, though not universally binding based on international law, Sharpe advances that the principles can be relatively binding for particular actors.
A first aspect of the relativity of the humanitarian principles is what principles are included and excluded from the set. Are humanity, neutrality, impartiality, and independence the principles? Could there be more principles? Could there be fewer? As Sharpe writes, “these four are not the only humanitarian principles — some organizations use them along with other additional principles.”Footnote 130 For the Red Cross movement, these four principles sit alongside principles of voluntary service, unity, and universality.Footnote 131 Indeed, even Jean Pictet’s foundational article discusses seven (not four) fundamental principles.Footnote 132 For the Humanitarian Accountability Partnership Standard principles, similarly, the four are complemented by participation and informed consent, duty of care, witness, redress, transparency, and complementarity.Footnote 133 By contrast, UNGA resolutions prior to 2003, as well as the ILC’s Draft Articles, advance a more concise lists of principles that do not include independence.Footnote 134 The absence of independence in these disaster-focused sources points to different orientations and emphasis of the principles between assistance in armed conflicts and assistance in disasters.
The next aspect of relativity of the humanitarian principles is their respective normative content. Individually, these four principles do not have “fixed or objective meaning.”Footnote 135 Between different sources, the scope of humanity, neutrality, impartiality, and independence varies. There are no global or universal definitions of these principles. Relatedly, interpretations vary on whether there is a hierarchy of humanitarian principles or if each principle is equally important.Footnote 136 The relative normative content of the individual principles stems from their basis in a hodgepodge of legal sources. And this hodgepodge engenders a third aspect of relativity — their relative bindingness on different actors.
For the Red Cross movement, the principles have become binding by virtue of the Red Cross statutes and further supported by the incorporation of the principles — namely, impartiality — in the Geneva Conventions and their Additional Protocols. Similarly for other NGOs, the principles are binding due to being incorporated into governing documents — be it codes of conduct, constitutions, or regulatory guidelines. These NGOs choose to be bound by the principles. However, the meaning and bindingness of the principles for those NGOs “is entirely a matter of internal regulation” rather than a legal obligation.Footnote 137 Non-compliance may lead to internal disciplinary actions or certain public ramifications for the NGO as a whole, but, without something more, the NGO could not be said to be violating international law.
For the UN system, the principles are rooted in UNGA Resolutions 46/182 and 58/114. However, whether a state or other actor is bound by the principles as articulated in the resolutions “depends on its relationship with the General Assembly,” which is in turn “determined by the UN Charter and, to a lesser extent, by established practice.”Footnote 138 For example, the OCHA was created by Resolution 46/182 and is therefore governed by it. Such is also the case with other subsidiary bodies of the UNGA, provided that Resolution 46/182 has some basis in the organ’s mandate. If the subsidiary body was created for humanitarian purposes, such as UNRWA, it will be bound by Resolution 46/182. Akin to NGOs, these bodies are bound by the principles to the extent that the principles are incorporated into their constitutive documents. That same bindingness, however, does not translate to states or other actors.
Further, recalling the “humanitarian exemptions” described in the previous section, the humanitarian principles have also featured in domestic counterterrorism laws. Chad’s 2020 counterterrorism law, for instance, carves out “activities of an exclusively humanitarian and impartial character brought by neutral and impartial humanitarian organizations.”Footnote 139 As narrow exemptions from counterterrorism laws, limited to humanitarians falling within the reach of certain domestic jurisdictions, such laws further showcase the relative bindingness of the principles to particular actors in particular jurisdictions.
Ultimately, Weller, Mačàk, and Sharpe provide somewhat distinct understandings of the relativity of the humanitarian principles. However, they seem to agree on the basic circumstances in which the principles are binding and those instances in which they are not: the humanitarian principles are not generally binding on humanitarians as a matter of public international law, but they can become binding on particular humanitarians by means of, for instance, internal governance mechanisms (like corporate charters and bylaws) or UNSC resolutions. We agree that this position is the current state of public international law on this matter. Nonetheless, it is important to recognize that Weller, Mačàk, and Sharpe’s conclusions are based largely on inquiries into treaty law, ICJ decisions, UN resolutions, ILC draft articles, and internal organizational statutes and bylaws. National court decisions, by contrast, have not featured prominently in this discourse. As the following section considers, however, there is potential richness within the decisions of national courts that can both advance understandings of the humanitarian principles and push us to revisit the relativity of the principles in public international law.
4. Rajaratnam and the humanitarian principles
While the humanitarian principles are not presently binding as a matter of public international law, it does not mean that they do not have the capacity to become binding. It is in this light that we turn back to the MV Sun Sea, the 496 Sri Lankan asylum seekers, and the resulting case of R v Rajaratnam brought before the BCCA. The decision of the BCCA showcases a national court incorporating the four humanitarian principles into domestic law. In doing so, we argue that Rajaratnam offers a window into one avenue whereby the humanitarian principles may become binding.
A. Introducing Rajaratnam
As noted in the introduction, Rajaratnam concerned the entry into Canadian territorial waters of a ship carrying 492 Sri Lankan Tamil asylum seekers. At first instance before the Supreme Court of British Columbia, the orchestrators of this operation faced charges of human smuggling in contravention of section 117 of the IRPA. At the close of the Crown’s case, the four accused brought a motion for a directed verdict in light of the Supreme Court of Canada’s decision in R v Appulonappa. Footnote 140 In Appulonappa, the Supreme Court of Canada read down section 117 to hold that the offence of human smuggling does not apply to persons providing humanitarian, mutual, or family assistance to asylum seekers (the three exceptions).Footnote 141 The core issue on the motion was whether the three exceptions created by Appulonappa operated as defences or as elements of the offence itself — with implications on jury instruction and the Crown’s burden of proof.Footnote 142 Justice William Ehrcke determined in a companion case that the three exceptions constituted an element of the offence.Footnote 143 Ultimately, three of the accused were acquitted at trial, while a mistrial was declared with respect to the fourth accused.Footnote 144 A fifth accused died before trial, and his charges were abated.
Three issues were raised on appeal in Rajaratnam: the first, on the constitutionality of advancing hearsay evidence in certain circumstances;Footnote 145 the second, on the motion for the directed verdict described above — whether the three exceptions created in Appulonappa operated as a defence or a new element of section 117 of the IRPA; and, finally, the third, on the particular elements of Appulonappa’s “humanitarian” exception and any requirements of humanitarian motivation. For our purposes, we focus only on the second and third grounds of appeal.Footnote 146
The BCCA held that the three exceptions operated as defences.Footnote 147 The Court of Appeal interpreted the Supreme Court of Canada’s use of the term “reading down” when conceptualizing the three exceptions in Appulonappa as limiting the reach of the offence but not making the offence wholly inapplicable to individuals providing humanitarian, mutual, or family aid.Footnote 148 While broad enough to encompass the creation of defences, this term was not so broad as to represent a constitutive part of the offence. Afterall, suggested the Court of Appeal, if the three exceptions were elements of the offence, the Crown would face significant hurdles trying to prove that a smuggler was not engaged in mutual aid,Footnote 149 an interpretation that the Court of Appeal suggested “would be absurd.”Footnote 150
Having determined that the three exceptions identified by the Supreme Court of Canada in Appulonappa served as defences rather than elements of the offence of human smuggling, the BCCA considered the substantive content of these exceptions. Recognizing that the exceptions invoke language that is capable of dual meaning — its everyday use and its specific legal meaning — the Court of Appeal engaged in this interpretive exercise to imbue the exceptions with legal meaning, ensure consistent application,Footnote 151 and allow for special jury instruction.Footnote 152 Since Rajaratnam was decided in 2019, it has been considered in only a handful of cases, and only two that engage with the humanitarian exception to human smuggling.Footnote 153 The cases of Boule Footnote 154 and Baleeyoos Footnote 155 both involved separate instances of human smuggling. Boule involved an American citizen charged with human smuggling under section 117 of the IRPA for helping migrants cross into Canada via his property situated on the Canada-US border. Baleeyoos considered the humanitarian exception in the context of immigration proceedings, where the claimant was found inadmissible to Canada for committing a human smuggling offence abroad. These cases, though few at present, reflect the relevance of the humanitarian defence, the humanitarian principles as incorporated therein, and their entrenchment within Canadian law.
With this judicial history of the Court of Appeal’s reasoning in Rajaratnam in hand, the following section delves into the Court’s engagement with the substantive content of the humanitarian exception, particularly into its reliance on the humanitarian principles. In doing so, we explore how the Court concretized these somewhat amorphous principles into domestic law with practical application.
B. The Court’s treatment of the humanitarian principles in Rajaratnam
The Court approached the substantive content of the IRPA’s section 117 humanitarian exception based on what might be described as a purposive or mental aspect — whether the “accused’s purpose was to save the lives or alleviate the suffering of asylum seekers” — along with what might be presented as a principled or external aspect — whether the “the accused’s actions sufficiently conformed to the principles of neutrality, impartiality and independence.”Footnote 156 Expanding on these aspects, they elaborated four elements of a humanitarian aid defence: (1) whether the purpose was to provide humanitarian aid; (2) whether the aid was provided to save a life or alleviate suffering; (3) whether the conduct conformed to the principles of impartiality, neutrality, and independence; and (4) whether the accused reasonably believed they were assisting an asylum seeker.Footnote 157
Within the first element, the Court held that humanitarian aid need not represent the “sole” motivation for eligibility. Recognizing the challenges of transporting asylum seekers, the Court affirmed that “no one would expect a volunteer professional with [MSF] or another aid group to ignore their professional development or be completely altruistic in their motivation.”Footnote 158 Further, the Court held that an “ancillary financial motive” does not preclude the accused from relying on the defence.Footnote 159 In other words, while a humanitarian purpose is required, an exclusively humanitarian purpose is not. Significantly, and drawing on the Human Smuggling Protocol,Footnote 160 the Court considered whether criminal activity precludes access to the defence. While it found that any motive that relates “in whole or in part … to human smuggling for profit in the context of transnational organized crime” would negate the defence,Footnote 161 other criminal motives would not necessarily bar access.Footnote 162 It thus seems that only criminal activity which is connected and adverse to the humanitarian defence is preclusive. This approach to humanitarian motivation is nuanced, recognizing that, while such motivation is a significant consideration, it may only be determinative in extreme circumstances.
The second element, requiring that the aid be lifesaving or suffering alleviating, implies that eligibility is dependent on the relief being needs-based and fitting a particular definition of humanitarian activity. The Court’s approach — focused on lifesaving, suffering alleviating, and needs-based relief — falls within the narrower understandings of humanitarian assistance described in section 2.A above. Still, the principle behind this element has broader relevance. Essentially, it reinforces that the question of “who is a humanitarian” is intimately connected with the question of “what is legitimate humanitarian assistance” and that, for the humanitarian category to be relevant, there must be limits on the characterizations of humanitarian relief.
On the third element, the Court of Appeal turned to the humanitarian principles as indicators of what actions qualify as humanitarian actions. According to the Court, “actions can be classified as humanitarian based on how closely they align with the principles of impartiality, neutrality and independence considered in all the circumstances,” omitting humanity due to its inherent inclusion in a lifesaving or suffering alleviating purpose.Footnote 163 Here, the Court did something quite interesting by emphasizing that assessing compliance with the principles requires a textured and holistic approach. The Court found that consideration of the humanitarian principles is not a “box-ticking exercise” or “strict requirement for access to the defence.”Footnote 164 The Court wrote that, to be eligible, the accused need not “raise an air of reality for each and every one of these principles.”Footnote 165 Instead, the principles are indicia, “relevant to the fact-finding process of determining whether the purpose was to provide humanitarian aid.”Footnote 166
The external analysis is thus inherently contextual. The trier of fact is instructed to assess the conformity of the accused’s actions with the principles of impartiality, neutrality, and independence,Footnote 167 an assessment that “will look different in different contexts.”Footnote 168 The resulting conclusion is, accordingly, a factual determination rather than a question of law. In framing the principles in this way, the Court indicates that there may be circumstances where a party should be able to rely on the humanitarian defence despite “partially sacrific[ing] one or more principles.”Footnote 169 Giving the example of humanitarian workers paying bribes, the Court acknowledges that humanitarian assistance often takes place in “difficult circumstances.”Footnote 170 The complex environment in which the assistance takes place thus becomes a relevant factor for assessing alignment with the principles and excusing instances where absolute fidelity to the principles is impossible or implausible. The principles are relevant legal factors, not determinative requirements.
Finally, the fourth element requires that the accused reasonably believe that they were assisting asylum seekers. In other words, would a reasonable person in the position of the accused believe that the people they were assisting were asylum seekers. According to the Court, this objective reasonableness standard “helps to ensure that [the accused’s] behaviour is reasonable and responsible.”Footnote 171 At least insofar as section 117 of the IRPA is concerned, this element ensures that individuals are not shielded from the prohibition on human smuggling where they have actual (yet ultimately reckless) beliefs about the asylum-seeking status of those they are assisting.Footnote 172
Looking across these four elements, the BCCA’s reasons in Rajaratnam ultimately provide a detailed, measured, and nuanced assessment of the humanitarian aid defence. In doing so, the reasons assist not only in elaborating the meaning of the humanitarian principles but also the bindingness of the humanitarian principles in Canada. Insofar as the contents of the humanitarian aid defence in Canada are concerned, the humanitarian principles are not merely hortatory, they are law; individuals seeking to rely on the humanitarian aid defence must align with these principles. Thus, what does this crystallization of the humanitarian principles in a national decision mean for the development of the humanitarian principles in public international law more generally? The following section explores this question, revisiting the relativity of the humanitarian principles.
5. Revisiting relativity: national case law and the development of the humanitarian principles in public international law
The holding of a single national case is a far cry from a determination of international law. International jurisprudence, of course, does not have precedential value in international law, much less domestic case law.Footnote 173 In this instance, where the main thrust of that national case is the interpretation of a domestic statute, that is particularly true. Nonetheless, national cases play a critical role in the interpretation and develop of international law. As former Supreme Court of Canada Justice Rosalie Abella notes in Nevsun Resources Ltd v Araya, “[u]nderstanding and embracing our role in implementing and advancing customary international law allows Canadian courts to meaningfully contribute, as we already assertively have, to the ‘choir’ of domestic court judgments around the world shaping the ‘substance of international law’.”Footnote 174
This final section considers two ways in which a case like Rajaratnam is relevant for understanding the status of the humanitarian principles in international law.Footnote 175 First, it explores Rajaratnam as a subsidiary means for the determination of the meaning of the humanitarian principles. Second, it looks at Rajaratnam as evidence of state practice. Here, it considers this case as part of a hardening of the principles as rules of customary international law. While short of a fully crystallized rule of customary international law, we argue that we may be seeing development from pure relativity. Importantly, our aim here is predominantly descriptive — to outline implications of the Rajaratnam decision for public international law. While we view Rajaratnam as a valuable decision that provides important insights into how a Canadian Court has relied on the humanitarian principles, our objective is not to provide a wholesale assessment on whether the various moves made by the Court are desirable — this is a different type of inquiry that is beyond the scope of this article.
A. National cases and the application of the humanitarian principles
The judicial decisions of national courts play an important role in the interpretation of international law. While not binding as precedent, they do represent “subsidiary means for the determination of rules of [international] law.”Footnote 176 What this means according to the ILC — which is presently undertaking a program of work on these subsidiary means — is that they can help establish both the “existence and content” of international law rules.Footnote 177 This role in determining the existence and content of international law rules is particularly important given the comparatively limited volume of international court decisions. As Hersch Lauterpacht wrote in 1929, the reasons of national courts offer “lessons of judicial treatment of international law in a world in which these opportunities are not frequent.”Footnote 178 In such contexts, international courts often reference nations’ court decisions as “evidence of the meaning of international law.”Footnote 179
A first element of the humanitarian principles that Rajaratnam can help to distinguish is instances where they are relied on as a sword as compared to instances where they are used as a shield. Often, the humanitarian principles are invoked as a means of pushing for humanitarian access. Humanitarian actors clothed in the humanitarian principles may push to provide assistance in a particular context on that principled basis. The prospect of withheld consent being arbitrary is higher where the humanitarian actor adheres to the principles. But, as Rajaratnam illustrates, the humanitarian principles can also be woven into protections for humanitarians, like defences to criminal liability. There are a variety of cases from different jurisdictions that have grappled with such humanitarian defences — be it in relation to the motivations of an individual in Australia providing material support to the Liberation Tigers of Tamil Eelam,Footnote 180 an individual charged with smuggling Somalian refugees into Canada,Footnote 181 an individual involved in people smuggling out of Iran and into the United Kingdom,Footnote 182 or individuals charged with conspiracy to unlawfully assist Afghan nationals to immigrate to the United Kingdom.Footnote 183 Here, Rajaratnam helps populate the meaning of “humanitarian” in such defences, suggesting that following the humanitarian principles is a means to avoid liability. An actor is not obliged to follow the principles, except insofar as they wish to rely on the defence. In pushing for access, the humanitarian principles are being used as a sword. By contrast, as constitutive elements of a criminal law defence, the humanitarian principles are being used as a shield. While the meaning of the principles in these circumstances may be consistent, the application can be quite different.
Relatedly, Rajaratnam offers a distinct contextual approach to the application of the humanitarian principles. Instead of holding out these principles as requirements to which humanitarians are obligated to adhere, the case presents them as factors that are collectively weighed to determine eligibility for humanitarian status. In doing so, Rajaratnam offers valuable insight into the varied potential legal uses of the humanitarian principles. The humanitarian principles can be applied across a range of circumstances — from a state determination on whether to consent to humanitarian assistance, to a funding organization’s determination of eligibility to apply for a grant, to a court’s determination on status for a humanitarian defence, to name a few. While some of these circumstances may be well served by rigid humanitarian requirements — threshold questions of consent, for instance — others, such as eligibility for a humanitarian defence in criminal proceedings, may be better served by the latitude afforded by a basket of humanitarian factors.
Next, Rajaratnam adds a nuanced perspective on humanitarian motivation. Whereas the principles may give the impression of humanitarians as altruistic and singularly motivated, the day-to-day realities of humanitarian assistance present a messier portrait of humanitarian motivation. Indeed, humanitarians often have multiple motivations. As Rajaratnam notes, “it is unrealistic to expect someone to have a sole motivation in respect of an action as complex and demanding as transporting asylum seekers.”Footnote 184 Further, humanitarians may be engaged in activities whose motivation is difficult to interpret. As Justice Nitya Iyer comments about Rajaratnam in Boule, the “Court of Appeal recognized that those engaged in humanitarian aid may be complicit in corruption because of the extremely difficult circumstances in which such aid occurs.”Footnote 185
Finally, Rajaratnam’s reading of the substantive content of the humanitarian principles can help inform ongoing treaty processes. In 2024, the UNGA decided to “elaborate and conclude a legally binding instrument on the protection of persons in the event of disasters.”Footnote 186 This prospective treaty builds on the ILC’s Draft Articles,Footnote 187 which in turn indicates at Article 6 on humanitarian principles that responses “to disasters shall take place in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable.”Footnote 188 As a subsidiary means for the determination of the rules of international law, Rajaratnam offers insights into the challenges and opportunities of applying the humanitarian principles in practice and before a trier of fact.
B. National cases in the crystallization of the humanitarian principles in customary international law
Beyond representing a subsidiary means for the determination of rules of international law, national cases can also provide evidence in support of customary international law.Footnote 189 On the one hand, decisions of national courts can provide evidence of the state (or general) practice element of customary international law.Footnote 190 The ILC’s draft conclusions on the identification of customary international law concludes that “State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions.”Footnote 191 On the other hand, the decisions of national courts can qualify as the opinio juris element of customary international lawFootnote 192 — the belief that the state practice is undertaken on the basis of an international legal obligation.Footnote 193
So where does Rajaratnam fit? What rule (or rules) of customary international law is the case helping to crystallize? To be clear, Rajaratnam is a case involving the interpretation of an exception to the Canadian offence under the IRPA of “knowingly organizing, inducing, aiding, or abetting the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by the Act.”Footnote 194 The matter certainly intersects with international treaty law related to both the prevention of human smuggling and refugee rights.Footnote 195 Still, its main focus is on the substantive content of an exception carved into a provision of a domestic statute. Nonetheless, as an expression of state practice, Rajaratnam has important implications for the crystallization of customary international law.
To begin, Rajaratnam shows a national court imbuing a domestic statute with meaning by allusion to the humanitarian principles as found in certain international sources. These sources reflect a mix of hard and soft law. More particularly, Rajaratnam draws on UNGA Resolution 46/182, the EU’s Consensus on Humanitarian Aid, the OCHA’s Glossary of Humanitarian Terms in Relation to the Protection of Civilians in Armed Conflicts, the Good Humanitarian Donorship Initiative’s Principles and Good Practice of Humanitarian Donorship, and the ICJ’s reasons in Nicaragua. In doing so, Rajaratnam showcases state practice of a national court imbuing a domestic legal definition of “humanitarian” with meaning through the invocation of the four humanitarian principles as defined internationally. Yet, while the Court’s use of these sources points to state practice of viewing them as compelling authority on the meaning of the humanitarian principles, it does not seem as though the Court feels obliged to rely on them (such that the subjective element of customary international law would be satisfied).
Next, in relation to humanitarian assistance, Rajaratnam presents the understanding that “humanitarian” is defined in relation to the humanitarian principles. As the Court writes, “would aid caught by this defence be sufficiently ‘humanitarian’ without recourse to the three additional principles [impartiality, neutrality, and independence]? In our view, it would not be.”Footnote 196 The Court thus advances the idea that “humanitarian” should be defined through a nexus with the humanitarian principles. Here, we thus see state practice of defining “humanitarian” in terms of the principles. While the Court’s omission of humanity as an explicit principleFootnote 197 demonstrates that the Court does not feel obliged to follow all four principles, its language does suggest a belief that the principles are integral to how “humanitarian” is defined. This understanding resonates with how the Canadian Criminal Code defines the humanitarian exemption to the crimes of terrorism and financing terrorism.Footnote 198 Section 83.03(4) reads that these crimes do not apply to persons carrying out such activities “for the sole purpose of carrying out humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international law.”Footnote 199 As in Rajaratnam, the reference to “humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations” indicates the legislator’s understanding that the humanitarian principles are integral to understandings of humanitarian assistance but not necessary as a complete set.
Further, Rajaratnam points to a common core of legal meaning for the individual humanitarian principles. While the contextual relevance of the humanitarian principles is relative in the sense that it is particularized to the issue of a defence in the context of the IRPA, the substantive meaning of the humanitarian principles themselves is not particularized. In other words, the Court is not saying: “This is meaning of the humanitarian principles in the context” but, rather, saying: ‘This is the meaning of the individual humanitarian principles, and we will apply that meaning in this context.” The case thus proceeds as if the meaning of these principles is general and widely applicable. Beyond the state practice of relying on the substantive meaning of the humanitarian principles found in these sources as the meaning of the individual principles, the BCCA in Rajaratnam does not seem to entertain the possibility that the meaning of the individual principles in Canada would diverge from the international source meaning. This reliance is closer to the subjective element of customary international law — that when invoking the humanitarian principles, states feel obliged to follow the substantive meaning of those principles as found in international sources.
Finally, Rajaratnam points to a possible universal legal application of the principles. Unlike the instances of relativity described above — where the bindingness of the principles is conditioned by constitutive documents, bylaws, or charters, for instance — here, the principles have potential legal relevance to any actor (even human smugglers). This use of the humanitarian principles resonates with some further state practice related to the humanitarian exemptions described above. In Canada, this includes the Canadian Criminal Code exemption just described to the crimes of terrorism and financing terrorism for activities “conducted under the auspices of impartial humanitarian organizations.”Footnote 200 Other states have similar humanitarian exemptions to terrorism offences.Footnote 201 Rather than being bound by the principles ex ante, Rajaratnam showcases the principles having legal significance only ex post and insofar as an individual wishes to rely on the humanitarian defence.
This last point has perhaps the most interesting implications for the crystallization of a rule related to “who gets to call themselves a humanitarian in international law.” Here, Rajaratnam is not saying that humanitarian actors are obliged to follow the humanitarian principles; it is silent on this point. It is saying, however, that for an actor to rely on privileges and advantages of being a humanitarian — in this case, eligibility for a humanitarian defence — that actor must demonstrate a nexus with the humanitarian principles. This last point thus presents both state practice and opinio juris that humanitarian actors must have a nexus with the humanitarian principles if they want to rely on humanitarian protections (like defences from criminal liability).
Importantly, the other side of this coin is that humanitarians’ failure to adhere to the humanitarian principles can furnish states with powers to exclude those humanitarians. A humanitarian may clothe themselves in the principles to rely on certain benefits just as a state may deny those benefits where adherence to the principles is absent. This implication resonates in IHL with what has been called the “rule of reasonableness.”Footnote 202 In IHL, state consent is needed for humanitarian assistance, but it cannot be arbitrarily withheld.Footnote 203 While a full account of the valid (and invalid) reasons for denying consent is beyond the scope of this article, it is noteworthy for our purposes that a failure to adhere to humanitarian principles can offer a valid reason for a state to deny a humanitarian consent to assistance. As Dapo Akande and Emanuela-Chiara Gillard note, “if the actor offering its services will not provide the assistance in a principled manner — i.e. in a manner which is exclusively humanitarian and impartial in character and carried our without any adverse distinction — it will not be arbitrary to refuse consent.”Footnote 204 Akin to Rajaratnam, a failure to follow the principles can offer a valid basis for excluding humanitarians from certain benefits and privileges.
On balance, Rajaratnam’s reliance on the humanitarian principles is more reflective of state practice than it is of opinio juris: the decision is more of a demonstration of the Court using the principles than it is an indication of a belief that it had an obligation to do so. But applying international norms that might be described as being on the cusp of crystallization is consistent with the approach taken by Canadian courts in recent years. The Supreme Court of Canada has recently acknowledged the critical role that domestic decisions play in the crystallization of customary international law.Footnote 205 As a result, as Abella J writes, “Canadian courts, like all courts, play an important role in the ongoing development of international law … [and] there is no reason for Canadian courts to be shy about implementing and advancing international law.”Footnote 206 As an expression of a Canadian court implementing and advancing customary international law, Rajaratnam presents early crystalline forms with the potential to grow and harden into established customary rules related to the humanitarian principles.
6. Conclusion
Things have changed since 2019 when Rajaratnam was released. The intervening years have seen a re-emergence of major international armed conflicts and a worsening of climate-related disasters. Meanwhile, they have also seen a retreat of major donors and a contraction of humanitarian funding. Amidst this rise in humanitarian need and fall in humanitarian funding, there is a real risk that the funds that remain will become more politicized, influenced by geopolitical considerations, and shaped by security concerns. As Michael VanRooyen, director of the Harvard Humanitarian Initiative, writes, the concern is that “[h]umanitarian principles such as neutrality, impartiality and independence will be sidelined and overshadowed by these diplomatic considerations.”Footnote 207 And whereas a widely applicable obligation to adhere to the principles could help arrest this marginalization, a relative obligation has less staying power.
In this context, Rajaratnam provides a helpful perspective on the relativity of the humanitarian principles. As this article has demonstrated, Rajaratnam showcases a national court relying on the humanitarian principles in a manner that is distinct from the relativity highlighted by authors like Weller, Mačák, and Sharpe. Instead of binding specific humanitarians merely by virtue of internal governance mechanisms or UNSC resolutions, it points back towards the possibility of more general legal applicability and shared normative content. In this way, the article has worked to open a conversation into the use, and potential, of national court decisions in the development and crystallization of the humanitarian principles in public international law. There are undoubtedly contexts in which the humanitarian principles are not fit for purpose. Indeed, there are important reasons to ask questions and offer critiques of the principles, as this article has done earlier. But entering a period of unprecedented precarity for the humanitarian sector, a more robust and frank conversation about the principles can help build a bulwark against further erosion. Rajaratnam offers an important and nuanced contribution to this conversation.
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