In spite of its crucial significance for the unification of Italy, the battle of Solferino between France and Austria in 1859 is now better known as a historical watershed event marking the onset of modern humanitarianism. By organizing assistance to the thousands of wounded soldiers left on the battlefield, Swiss businessman Henry Dunant laid the foundations for the Fundamental Principles of humanitarian action. “He negotiated access, he chose to act impartially, he used his position of neutrality, and he organized civil society in a voluntary, non-coerced fashion.”Footnote 1 Dunant's selfless acts and his impassioned book A Memory of Solferino Footnote 2 inspired, among many other things, the formulation of modern humanitarian principles.Footnote 3
In virtually any rendition,Footnote 4 these principles include the principles of impartiality and neutrality of humanitarian assistance.Footnote 5 Naturally, their significance in times of armed conflict cannot be overstated. Assistance provided exclusively to one party to the conflict or denied to some of the victims only because of their race, ethnicity or sex would not only lead to justified criticism on moral grounds but could also worsen human suffering during wartime, contribute to the escalation of conflicts and undermine the efficiency of humanitarian action in general.
Despite their undoubted importance, the normative nature of the principles remains little understood. Although they are sometimes described as binding on States and other humanitarian actorsFootnote 6 as a matter of international law, such assertions are usually accompanied by little or no analysis as to their specific legal basis.Footnote 7 This state of affairs may to some extent be explained by the perceived moral desirability of the two principles. It is undisputed that a convincing moral case can be made in favour of the impartial and neutral character of any humanitarian aid. Nonetheless, more is needed to establish the legal validity of any norm under international law.
The importance of understanding the normative nature of humanitarian principles is particularly pressing in modern-day conflicts characterized by the asymmetry of belligerent partiesFootnote 8 and the proliferation of humanitarian actors.Footnote 9 The militarily more powerful party to a conflict now typically finds itself taking on a multiplicity of tasks beyond strict military engagement.Footnote 10 These frequently involve activities previously reserved for a handful of humanitarian organizations committed to a similar set of values.Footnote 11 In this connection, concerns have appeared about the alleged “blurring of the lines” between military, political and humanitarian efforts.Footnote 12 Today, States, intergovernmental organizations, NGOs and others compete to achieve their goals in an increasingly shrinking humanitarian space.Footnote 13 The extent to which international law constrains the activities of these diverse humanitarian actors therefore demands close attention.
The aim of the current article is to address this need by scrutinizing the position of the principles of impartiality and neutrality of humanitarian action in international law. In particular, the article challenges the view that a general legal basis underpinning both principles exists in international law, with a resulting binding effect on all humanitarian actors in their activities. The analysis focuses on States as humanitarian actors and further explores the effect of the principles on States’ interaction with other stakeholders, including the United Nations (UN) Security Council and humanitarian organizations such as the International Committee of the Red Cross (ICRC).
The article proceeds in three consecutive steps. First, it defines and distinguishes the notions of impartiality and neutrality of humanitarian action. Second, the article analyzes whether a general legal basis providing for the universal applicability of the two principles can be found in one of the three principal sources of international law set out in Article 38(1) of the Statute of the International Court of Justice (ICJ): treaties, customary international law and general principles of law. Third, the article examines whether the principles may produce legal effects for the conduct of States even without such a legal basis. It considers the potential direct effect of UN Security Council resolutions demanding compliance with the principles as well as the indirect effect brought about by States’ obligation to respect humanitarian organizations’ adherence to the principles.
Conceptualization of the principles of impartiality and neutrality
Although the principles of impartiality and neutrality support and reinforce each other, the difference between them should be noted at the outset. It is true that in general parlance, the two principles are frequently used as synonyms; indeed, dictionaries often use one to define the other.Footnote 14 In the field of humanitarian action, however, each carries a separate meaning and, as will be shown, is of a different legal nature.
On the one hand, the principle of neutrality is a macro-level principle of abstention. It requires the provider of humanitarian action to abstain from associating with the ideological or political aims of any of the parties to the conflict. It is the embodiment of the idea that humanitarian actors must remain ideologically free and may not take sides in political or religious controversies.Footnote 15
The principle of impartiality, on the other hand, is a micro-level principle of action. It requires that all humanitarian action be undertaken only on the basis of, and in proportion to, the need of the victims. In line with Jean Pictet's useful systematization, it can thus be better seen as a set of the three intertwined but separate sub-principles of non-discrimination, proportionality and impartiality stricto sensu.Footnote 16 It has been suggested that impartiality also operates (or should operate) on a global scale in the form of a demand for equitable treatment of victims of all conflicts.Footnote 17 However, in this article, impartiality is understood in its traditional sense of a victim-oriented micro-level principle of humanitarian action with impact on conduct within a particular armed conflict.Footnote 18
Together, the two principles “serve the overarching goal of humanity” by their operational and instrumental nature.Footnote 19 It is sometimes said that aid given to one side of the conflict does not necessarily have to be in violation of these principles.Footnote 20 To some extent, this is obviously true. A humanitarian actor should not be expected to provide a strictly equal amount of aid to both sides. Such a goal might not reflect the size of the affected population or the needs of the victims – after all, a conflict may disproportionately affect the population in a territory controlled by one party to the conflict only, while leaving the situation relatively stable for those on the territory of the other side. For instance, it would be absurd to claim that humanitarian aid distributed in the Federal Republic of Yugoslavia during the 1999 aerial bombing campaign would not have been neutral and/or impartial unless matched by equal assistance to the NATO countries.Footnote 21
Nevertheless, unilateral actions undertaken on the basis of the nationality of the victims or their other association with one party to the conflict should be seen as prima facie inconsistent with the principles of impartiality and neutrality. Such assistance takes into account an extraneous consideration other than the needs of the victims and thus lends itself to accusations of partiality.Footnote 22 It additionally specifically assists one side of the conflict only and thus impinges on the principle of neutrality.Footnote 23
The ICRC Commentary to the Additional Protocols to the Geneva Conventions seems to take the opposite view, arguing that a “unilateral action cannot be considered as indicating a lack of neutrality”.Footnote 24 The explanation in the Commentary is remarkably frank, stating that “traditional links, or even the geographical situation, may prompt a State to undertake such actions, and it would be stupid to wish to force such a State to abandon the action”.Footnote 25 It is, however, difficult to see what would be left, in particular of the principle of neutrality, if a humanitarian actor could escape an accusation of a violation simply by remaining silent about its true incentives.
It is suggested in response that the better view is to separate the question of whether such conduct breaches the principles from the question of whether that would mean that the State must abandon the action (which depends on the normative nature of the principle in question). As will be shown, in the present state of international law, there is no general requirement for States to abide by the principles at all times, and thus assistance of the kind suggested in the ICRC Commentary may still be permissible in law despite not being neutral in principle.
Search for a general legal basis of the principles of impartiality and neutrality
If one accepts that impartiality and neutrality are essential for the furtherance of “the overarching goal of humanity” on the international plane,Footnote 26 one would be forgiven for assuming that these principles must be firmly anchored in the binding corpus of international law. This is also, as will be seen, a frequent interpretation of the ICJ's judgment on the merits in the Nicaragua case.Footnote 27 Accordingly, this section revisits the relevant part of the Nicaragua judgment to unpack the analysis provided by the ICJ. It then considers whether any of the three main sources of international law – treaties, custom and general principles of law – can be said to provide a general legal basis for the two principles.
Nicaragua revisited
In Nicaragua, the ICJ had to decide on the lawfulness of the assistance provided by the US government in the early 1980s to the contras fighting against the Nicaraguan government.Footnote 28 Notably for the present purposes, the assistance in question was provided by a State, not by a humanitarian organization or any other non-State actor. In the first step of its analysis, the Court asserted that humanitarian assistance could not be seen “as in any … way contrary to international law” as long as it was in line with the principles of humanity and impartiality declared by the 20th International Conference of the Red Cross.Footnote 29 However, on the facts of the case, the US assistance was limited to one side of the conflict only and thus it was, the Court observed, not “given without discrimination to all in need in Nicaragua, [but] merely to the contras and their dependents”.Footnote 30 In the second step of its reasoning, the Court held that this amounted to an intervention in the internal affairs of Nicaragua and ultimately a violation of international law by the United States.Footnote 31
The ICJ judgment thus appeared to require any actor providing humanitarian assistance to abide by the Fundamental Principles of the International Red Cross and Red Crescent Movement (the Movement).Footnote 32 In this connection, it should be mentioned that the ruling spoke expressly only of the principles of humanity and impartiality.Footnote 33 However, in its analysis of the facts of the case, the Court placed the greatest emphasis on the fact that aid was disbursed to one side of the conflict only.Footnote 34 In this sense, the United States’ conduct primarily amounted to a breach of the principle of neutrality due to the country's not-so-subtle alignment with the political and ideological aims of one party to the conflict.Footnote 35
The ICJ did not, however, cite any law in support of its analysis in this part of the judgment, apart from the declaration of the Fundamental Principles of the Movement,Footnote 36 which it (correctly) did not describe as legally binding with respect to either of the parties to the dispute.Footnote 37 In fact, the Court merely stated that “[a]n essential feature of truly humanitarian aid” is that it is provided without any discrimination (thus invoking an aspectFootnote 38 of the principle of impartiality).Footnote 39 The ICJ all but admitted that its position amounts to little more than judicial fiat in the following sentence, which it opened simply with the words “In the view of the Court”.Footnote 40
In spite of these deficiencies, the judgment has been widely interpreted as confirming the mandatory legal nature of the principles in question for humanitarian actors both public and private. In particular, it has been described as having recognized the general binding force of the Fundamental Principles of the Movement,Footnote 41 as laying down “the essential conditions for all humanitarian action”Footnote 42 and as providing “a source of obligations for states themselves, if [they] claim to be engaged in humanitarian activity”.Footnote 43 Therefore, it is necessary to investigate whether the legal basis for the two principles could be properly located in any of the three main sources of international law. Accordingly, each of the following subsections examines one of these sources.
Treaties: The Geneva Conventions and their Additional Protocols
The treaty law relating to the provision of humanitarian relief in times of armed conflict includes primarily the four Geneva ConventionsFootnote 44 and their two Additional Protocols.Footnote 45 With the exception of one provision replicated in all four Geneva Conventions – designated as common Article 3 – the Conventions and Additional Protocol I (AP I) apply in situations of international armed conflict.Footnote 46 Conversely, common Article 3 and the entirety of Additional Protocol II (AP II) apply in non-international armed conflicts.Footnote 47
Principle of impartiality
To begin with, this body of treaty law does not contain any general endorsement of either principle with respect to all humanitarian action undertaken in situations of armed conflict. Of the two, impartiality is more prominent in the instruments, with several provisions mentioning this principle expressly.Footnote 48 However, these provisions do not endow the principle with a general binding force with respect to all humanitarian actors. Instead, they serve two principal functions.
First, the relevant provisions in the Geneva Conventions that refer to impartiality use it mainly as a defining characteristic of humanitarian bodies which are to be given access to victims of war.Footnote 49 For instance, Article 59(2) of GC IV provides that relief schemes on behalf of the occupied population may be undertaken “either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross”.Footnote 50 This means that only bodies whose “impartiality is assured”Footnote 51 are legally privileged in the sense that they are entitled to free passage and protection of their relief consignments.Footnote 52
Second, the two Additional Protocols stipulate that in case of a lack of supplies essential for the survival of the civilian population, “humanitarian and impartial” relief actions “shall be undertaken”.Footnote 53 These provisions, however, do not designate the subject of this obligation, nor do they forbid assistance that would not meet the criterion of impartiality. Undoubtedly, the prohibition of adverse distinction in the application of international humanitarian law (IHL) is one of the fundamental tenets of this body of law.Footnote 54 However, it should be recalled that this prohibition corresponds to the subprinciple of non-discrimination only and does not cover the entire scope of impartiality.Footnote 55 Therefore, to the extent that the rules in question are to apply generally, the relevant phrase should be seen as exhortatory only, encouraging relief action of the kind described but not requiring in itself that such aid be in fact provided by a specific actor designated ex ante.
Nevertheless, the modifiers “humanitarian and impartial” are certainly not without any legal effect. Assistance that meets the said criteria is privileged and protected under the terms of the Additional Protocols. In the context of international armed conflicts, AP I expressly provides that “[o]ffers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts”.Footnote 56 This serves to address potential claims by the territorial State to that effect and exclude them as a legal basis of objections to humanitarian action.Footnote 57 In the context of non-international armed conflicts, no corresponding stipulation has found its way into the text of AP II.Footnote 58 Nonetheless, assistance which meets these criteria must be perceived as being endorsed by AP IIFootnote 59 and hence can only be refused by the territorial State for reasons that are neither arbitrary nor capricious.Footnote 60
Principle of neutrality
In contrast to impartiality, the principle of neutrality of humanitarian action is not expressly mentioned in the text of the Geneva Conventions or their Additional Protocols. To some extent, this can be explained by the fact that the notion of neutrality already carries a different contextual connotation in the law of armed conflict, namely as a reference to the law of neutrality, and the drafters may have wanted to avoid confusion between these two terms.Footnote 61
It would be inaccurate, however, to claim that the principle of neutrality of humanitarian action does not feature at all in the treaty framework of IHL. Both the Geneva Conventions and AP I refer to “fundamental principles of the Red Cross” in a number of provisions.Footnote 62 Interestingly, the formulation of these principles at the time of drafting of the Geneva Conventions did not yet expressly include the principle of neutralityFootnote 63 – it was first included at the 25th session of the Board of Governors of the Red CrossFootnote 64 in 1959Footnote 65 and was incorporated into the present-day list of seven Fundamental Principles (humanity, impartiality, neutrality, independence, voluntary service, unity and universality) in 1965.Footnote 66 Therefore, at least since 1965, neutrality has been accepted as one of the Fundamental Principles of the Movement and it can thus be said that the Geneva Conventions and AP I indirectly recognize this principle as well.
However, this does not mean that the treaties somehow elevate neutrality or any of the other principles to the level of principles of general application. Instead, the provisions in question should properly be read as conditioning the duty of States to facilitate access to components of the Red Cross and Red Crescent Movement upon these components’ compliance with their own principles. Oddly, AP I refers to these principles with respect to the National Red Cross and Red Crescent SocietiesFootnote 67 and the League (now Federation) of Red Cross and Red Crescent Societies,Footnote 68 but not the ICRC.Footnote 69 Nevertheless, the ICRC made it clear in the text of its own Commentary to AP I that as “the traditional guardian of the Movement's principles”, it considers itself equally bound to observe these principles.Footnote 70
As with the specific principle of impartiality discussed above, the treaty framework does not generalize the applicability of the Fundamental Principles of the Movement to all humanitarian actors. With respect to “other humanitarian organizations”, AP I merely stipulates that they conduct their activities “in accordance with the provisions of the Conventions and this Protocol”.Footnote 71 On the basis of the legal framework described above and in particular due to the operation of common Article 9/9/9/10 of the Geneva Conventions,Footnote 72 this may import yet again a condition of impartiality.Footnote 73 If the actors in question do not meet this condition, the territorial State may lawfully refuse access.Footnote 74 Nevertheless, no requirement of neutrality should be seen as imposed upon these actors by operation of the treaty framework. In addition, none of these requirements, applicable as they are only to Movement components and humanitarian organizations proper, can be extended to States or the providers of humanitarian action in general.
It can be concluded that despite their frequent invocation, as a matter of treaty law, the significance of the principles of impartiality and neutrality is limited and mutually distinguishable. The legal effect of the principles is almost exclusively limited to humanitarian organizations and in particular to the components of the Movement. The effect on States is indirect only, obliging them under certain circumstances to accept assistance that is in line with the principles. The treaty language does not, however, oblige States (or parties to armed conflicts more generally) to provide assistance of this kind themselves.
Although this interim conclusion may appear somewhat unsatisfying, it is congruous with the specific role anticipated for States under the Geneva Conventions and their Additional Protocols. Under the treaty framework, States are primarily seen as potential belligerents and not as humanitarian actors in their own right. Insofar as the treaties consider the question of the provision of humanitarian relief, they focus not on States, but on international and domestic organizations such as the National Red Cross and Red Crescent Societies. The specific conduct of States in that regard is thus largely left praeter legem as far as the treaties are concerned.
Customary international law
It could certainly be argued that the ICJ's intuitive conclusion in Nicaragua reflected the position of States and thus amounted to a correct analysis of the applicable customary international law.Footnote 75 Undoubtedly, customary law contains both rules and principles.Footnote 76 As a matter of legal theory, principles are norms which “operate at a higher level of generality than rules”Footnote 77 and which help to explain the individual rules or provide the reason for them.Footnote 78 There is thus no conceptual barrier to recognizing the principles of impartiality and neutrality as principles of customary law. However, their existence would have to be “established … in the same way as rules (by practice and opinio juris) or derived by extrapolation or analysis from such rules”.Footnote 79
Opinio juris
Already the identification of the opinio juris in this connection poses considerable difficulty. It is true that many proclamations have been made by a plethora of actors endorsing the principles of impartiality and neutrality on the international plane. The UN General Assembly set out the principles of humanity, neutrality and impartiality as the “guiding principles” of humanitarian assistance in a non-binding resolution in 1991.Footnote 80 In the following years, the General Assembly frequently reaffirmed the said principles.Footnote 81
Significantly, many States have since endorsed these principles and have committed themselves to adhering to them in undertaking humanitarian action.Footnote 82 However, these have almost exclusively been Western States, and it would thus be premature to speak of any general acceptance of the said principles.Footnote 83 In fact, when non-Western States do make a reference to the humanitarian principles in international fora, they typically limit their import to international organizations and humanitarian agencies.Footnote 84
Moreover, with respect to those States who are member States of the European Union (EU), it is arguable that the statements in question are in fact referable to EU law, and not to international law. This is due to the operation of Article 214(2) of the Treaty on the Functioning of the European Union (TFEU), which provides that “[h]umanitarian aid operations shall be conducted in compliance with the principles of international law and with the principles of impartiality, neutrality and non-discrimination”.Footnote 85 It is thus questionable to what extent States’ individual commitments can be taken to signify a belief on their part that conduct in line with these principles would actually be required by international law. Such doubts remain particularly strong with respect to those States that specifically refer to the TFEU as the applicable legal framework.Footnote 86
What is more, most of the proclamations referred to above are found in documents designated as the individual States’ “humanitarian strategy” or “humanitarian policy”, thus again indicating that the commitments in question were entered into not on a legal level – in other words, with the intention of being bound by international law – but only as a matter of policy or even international morality.Footnote 87
State practice
Even if it could be accepted that the statements referred to above amount to opinio juris sufficient to justify the customary character of the principles under scrutiny, one cannot draw the same conclusion with respect to the parallel requirement of State practice. Although in general statements of the kind discussed above, States typically refer to impartiality and neutrality alongside one another,Footnote 88 it is more accurate to distinguish between them as far as actual practice is concerned.
First, as far as impartiality is concerned, there is strong evidence to the effect that States have frequently permitted extraneous considerations in addition to the simple needs of the victims in their decision-making about the disbursement of aid. These have often featured an element of politicization and conditioning of aid.
Politicization of humanitarian action can take a number of different forms. For example, in a study about the instrumentalization of aid in the context of the conflict in Afghanistan, Fiona Terry observed that Western military forces
dropp[ed] pamphlets over southern Afghanistan that told residents they were to give information on the Taliban and Al Qaeda if they wished to continue receiving “humanitarian” aid, and generally us[ed] aid as a tool to “win the hearts and minds” of the Afghan population.Footnote 89
Another well-documented example concerns the US humanitarian aid to Cambodian refugee camps along the Thai–Cambodian border after the fall of the Khmer Rouge regime in 1979.Footnote 90 As summarized by Christine Mikolajuk, the assistance motivated by the US opposition to the communist government of Cambodia in fact served to revive the Khmer Rouge and contributed to the continuation of the conflict, thus worsening rather than alleviating the plight of the refugees.Footnote 91
A more problematic practice has been to subject the provision of humanitarian assistance to express conditions set by the potential donor. This is a well-accepted feature of international development aid,Footnote 92 but it goes against the nature of humanitarian assistance as a way of relieving the suffering of the victims of crisis and conflict.Footnote 93 A prominent example in this regard is the withdrawal of humanitarian staff and emergency assistance from Sierra Leone after a coup d’état in 1997.Footnote 94 The UN political leadership took the decision, and the UK government supported it; both actors’ aim was “to try and effect the political objective of regime change”.Footnote 95 In reality, this conditioning not only failed to bring about the intended political objective but has been excoriated for contributing to unnecessary loss of life in Sierra Leone.Footnote 96
Although these instances have been criticized by academics and NGOs, they have not been subject to any international condemnation by States or intergovernmental organizations for failing to live up to the demands of impartiality. Hence, the recurring practice of politicization and conditionality of aid places significant doubts on any claim that the adherence to the principle of impartiality by States providing humanitarian aid has been “constant and uniform” as required by international law for the establishment of custom.Footnote 97
Second, the principle of neutrality has been treated even more liberally by States. Writing in 1989, Professor Frits Kalshoven noted that States had frequently described as “humanitarian assistance” the material support provided to the sympathetic party to an armed conflict, in particular in the context of decolonization.Footnote 98 He added that far from inviting any international condemnation, such support was welcomed by the international community as “a highly desirable expression of support for the cause of self-determination of the peoples involved”.Footnote 99
The post-Cold War era changed very little about this practice. The alliances have shifted, but the powerful States have generally continued playing the dual role of providing aid and projecting their own political aims at the same time. The United States was open about its aim to integrate the delivery of assistance within its counter-insurgency strategy, so much so that the US secretary of State at the time, Colin Powell, described humanitarian agencies with arresting candour as “such a force multiplier for us, such an important part of our combat team”.Footnote 100 For instance, international “coalitions of the willing” such as the Friends of Syria grouping of eleven Western States and the informal “Libya contact group” of about forty nations have been open about their aim to channel “humanitarian assistance” to the opposition in both Syria and Libya.Footnote 101 Even more recently, Russia dispatched a convoy described as carrying “humanitarian relief” to the separatist-controlled part of the Ukrainian territory.Footnote 102
Admittedly, it is conceivable that this conduct, while inconsistent with the principle of neutrality, would nonetheless not frustrate the customary status of that principle. The ICJ held in Nicaragua that practice corresponding with a putative rule of customary law need not be “in absolute rigorous conformity with the rule”; it suffices that instances of inconsistent conduct “should generally have been treated as breaches”.Footnote 103 However, this has emphatically not been the case here. It is true that some of the non-neutral conduct described above was condemned on the international plane. In particular, the Russian “humanitarian convoy” was decried as tantamount to invasion by both UkraineFootnote 104 and a number of third States.Footnote 105 Notably, however, with one known exception,Footnote 106 the condemnatory statements referred to other norms of international law as being violated, in particular the territorial integrity and sovereignty of UkraineFootnote 107 and – with respect to humanitarian assistance specifically – the need to secure the consent of the territorial State for any relief action.Footnote 108 It can thus be summarized that existing State practice with respect to the principles of impartiality and neutrality does not support their existence in customary international law as generally binding principles.Footnote 109
General principles of law
Given that the principles have not been found to bear the force of customary law, it remains to be seen whether they might nevertheless be considered as “general principles of law” in the sense of Article 38(1)(c) of the ICJ Statute. Some arguments in favour of this proposition could certainly be made. First, since impartiality and neutrality are “principles” by their designation, their nature seems to be more readily aligned with the category of general principles of law than with any other type of sources of international law. Second, they are closely connected with the principle of humanity, which someFootnote 110 have considered to have received legal recognition as a general principle of law by the ICJ in the Corfu Channel case.Footnote 111 It could thus be argued that the same conclusion could be reached with respect to these two principles.Footnote 112
The two contentions should be analyzed separately. The first one is problematic in that it does not square with the prevailing conception of general principles of law as a source of international law. According to this conception, general principles are properly understood as “those which can be derived from a comparison of the various systems of municipal law and the extraction of such principles as appear to be shared by all, or a majority, of them”.Footnote 113 General principles of law are thus emphatically not moral principles or general principles of international relations. Significantly in this respect, impartiality and neutrality of humanitarian action originate on the international plane and not within domestic legal systems. Their origins lie in IHL and in the activities of the components of the Red Cross and Red Crescent Movement.Footnote 114 Although they have now been adopted as guiding principles by some international organizations and even States,Footnote 115 it can hardly be suggested that they can now be extracted from the domestic law of all or even just a majority of States, if only for the reason that most States do not in fact actively and regularly engage in the provision of humanitarian assistance.Footnote 116
The second contention requires a closer look at the ruling of the ICJ in the Corfu Channel case and the subsequent jurisprudence of that Court. It can be accepted arguendo Footnote 117 (although this view is not universally endorsedFootnote 118) that Corfu Channel recognized “elementary considerations of humanity” as general principles of law and applied them as a basis for the finding of a legal obligation in the case.Footnote 119 Furthermore, the principles of humanitarian action indisputably find their basis in considerations of humanity; after all, “humanity” is such a principle on its own, and there are many links between impartiality and neutrality on the one hand and humanity on the other.
However, in the South West Africa cases, the ICJ forcefully rejected the suggestion “that humanitarian considerations are sufficient in themselves to generate legal rights and obligations”.Footnote 120 In Nicaragua, the Court further elaborated that the notion of “elementary considerations of humanity” had a more limited meaning which was in fact reflected in common Article 3.Footnote 121 As discussed above, this provision does not contain a general endorsement of the principles of humanitarian action any more than the other provisions in the Geneva Conventions and their Additional Protocols.Footnote 122 It is thus submitted that, whatever the true impact of the inclusion of the term “elementary considerations of humanity” in the Corfu Channel case was, it did not in itself serve to endow the connected notions of impartiality and neutrality with binding force under international law.
In summary, one may concede that equating humanitarian principles with general principles of law holds a certain superficial appeal. However, closer scrutiny of the origins and nature of impartiality and neutrality, as well as of the relevant international jurisprudence, reveals that these principles do not in fact qualify as general principles of law in the sense of an autonomous source of international law.
Potential direct and indirect legal effect of the principles of impartiality and neutrality
As seen in the previous section, the examination of the three principal sources of international law suggests that the ICJ's position in Nicaragua – in particular as interpreted in subsequent writingsFootnote 123 – does not square with the current state of international law. Nevertheless, it would be wrong to dismiss the importance of the principles of impartiality and neutrality from the perspective of international law altogether. In fact, there are at least two important ways in which these principles may bring about significant legal effects for States in international law.
UN Security Council resolutions
First, adherence to the principles may be specifically demanded of humanitarian actors by the UN Security Council. The Security Council has done this on a number of occasions, while expressly acting under Chapter VII of the UN Charter.Footnote 124 For example, in Resolution 1341 (2001) concerning the situation in the Democratic Republic of the Congo, the Council called upon “all the parties to respect the principles of neutrality and impartiality in the delivery of humanitarian assistance”.Footnote 125 Due to the operation of Articles 25 and 103 of the Charter, resolutions adopted under Chapter VII are binding on all member States of the UN and prevail over conflicting obligations under any other agreement.Footnote 126
In other instances, the Security Council has endorsed the principles of impartiality and neutrality (frequently alongside other principles of humanitarian action) with lesser force. On some occasions, in resolutions not adopted under Chapter VII, the Council has included demands that humanitarian assistance be delivered in accordance with these principles.Footnote 127 In accordance with the ICJ's ruling in the Namibia Advisory Opinion, the language used in such resolutions supports the view that these “demands” should also be seen as binding on the concerned States.Footnote 128 The view that all Security Council decisions are legally binding has been openly endorsed in the recent practice of the Council itself.Footnote 129 In two resolutions concerning the situation in Syria, it “underscor[ed] that Member States are obligated under Article 25 of the UN Charter to accept and carry out the Council's decisions”.Footnote 130
In addition, the Council has frequently limited itself to “underscoring” or “emphasizing” the importance of upholding the principles of humanitarian action, at times specifically with respect to UN organsFootnote 131 or humanitarian organizations,Footnote 132 but most commonly in a general way without stating which actors it has in mind.Footnote 133 However, such language is probably better seen as exhortatory, and thus the resolutions in question would not amount to creating a binding legal obligation on the member States to abide by the principles of humanitarian action beyond their already existing legal duties. A contrario, resolutions by which the Security Council “demands” or “calls on” member States to adhere to these principles in the provision of humanitarian assistance have the effect of conferring binding force on the said principles within the scope of such resolutions.
Commitments made by humanitarian organizations to respect impartiality and neutrality
Second, the principles of impartiality and neutrality carry constitutional significance with respect to “Dunantist” humanitarian organizations.Footnote 134 These organizations, such as the components of the Red Cross and Red Crescent Movement and Médecins Sans Frontières (MSF), enshrine the legacy of Henry Dunant by incorporating the principles of humanitarian action in their constitutive documents.Footnote 135 In addition to the two organizations just mentioned, several other international organizations and NGOs have likewise committed themselves to complying with these principles in all their humanitarian activities, with prominent examples including the International Office for Migration,Footnote 136 the International Rescue CommitteeFootnote 137 and the World Food Programme.Footnote 138 These self-commitments have an indisputable role in these organizations internally and serve as guidance for their conduct.Footnote 139 Moreover, initiatives such as the Humanitarian Accountability Partnership (2010) and the Core Humanitarian Standard on Quality and Accountability (2014) further promote the principles to participating organizations, increasing the likelihood that “Dunantist” commitments will continue to be made in the future.Footnote 140
The inclusion of the principles in the charters and constitutive documents of humanitarian organizations may also have an indirect effect on States. This is most apparent with respect to the components of the Red Cross and Red Crescent Movement. Significantly, States agreed that they “shall at all times respect the adherence by all the components of the Movement to the Fundamental Principles” when they adopted the Statutes of the Movement in 1986.Footnote 141 Although the Statutes were not concluded in the form of an international treaty, an argument has been advanced as to their binding nature under international law on the basis of their content and method of adoption.Footnote 142 Whatever the merits of this argument and thus irrespective of the legal status of the entirety of the Statutes, the duty of States to respect the commitment of the components of the Movement to adhere to their Fundamental Principles may also be inferred from the texts of the Geneva Conventions and their Additional Protocols, which expressly endorse these principles.Footnote 143
This indirect obligation of States has direct and observable real-world consequences. For instance, in the Simi ć case, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) inferred on this basis that the ICRC had a right to non-disclosure of information relating to its activities in judicial proceedings in order to effectively discharge its mandate.Footnote 144 The Trial Chamber specifically held that the parties to the Geneva Conventions and their Additional Protocols “must be taken as having accepted the fundamental principles on which the ICRC operates, that is impartiality, neutrality and confidentiality, and in particular as having accepted that confidentiality is necessary for the effective performance by the ICRC of its functions”.Footnote 145 This reasoning led it to decide that a former ICRC employee should not be called as a witness in that case.Footnote 146
To sum up, the principles of impartiality and neutrality can be said to have an indirect legal effect due to States’ duty to respect the commitment to these principles undertaken by certain humanitarian organizations. Nevertheless, it would be overstating the point to claim that the principles are “binding upon the States Parties to the Geneva Conventions because they were incorporated into the Statutes of the Movement”.Footnote 147 It bears reminding that States are not members of the Movement. As such, they are merely bound to respect the adherence to the Fundamental Principles by the components of the Movement; the Statutes do not contain a separate legal basis for a directly binding obligation for States when they engage in humanitarian action themselves.
Conclusion
In a 1979 Commentary on the Fundamental Principles of the Red Cross aimed at a general lay audience,Footnote 148 Jean Pictet warned that
[W]e must avoid confusion of the principles of the Red Cross with the principles of international humanitarian law, mainly embodied in the Geneva Conventions for the protection of the victims of war. The former serve at all times to inspire the action of the Red Cross as a private institution, whereas the latter, which have an official character, regulate in wartime the conduct of States vis-à-vis their enemies.Footnote 149
It would appear that his reminder is no less relevant today than it was over thirty-five years ago. It is understandable that the indisputable moral force of the principles of impartiality and neutrality may at times tempt academic writers to overestimate their legal position under international law. The ICJ's desire in Nicaragua to distinguish between forms of aid that are benign and those that amount to unlawful interference is equally comprehensible. However, neither of these tendencies has converted the two principles in question into norms that would directly, in Pictet's turn of phrase, “regulate in wartime the conduct of States”.
Yet, the principles have proven to have important indirect effect on the conduct of States, in particular in their interaction with humanitarian organizations of the “Dunantist” type. Assistance that is provided in line with these principles is privileged and protected under IHL, and organizations that commit themselves to the same principles may under certain circumstances expect privileged treatment, too. Additionally, States may find themselves directly affected by the two principles within the narrow confines of an appropriately worded binding resolution of the UN Security Council.
Although the conclusion advocated here may at first blush find little favour with the proponents of the humanitarian cause, it is submitted that its consequence may in fact be more optimistic upon closer inspection. It would be unrealistic to expect States to abandon all aid efforts undertaken as part of their counter-insurgency strategies or State-building efforts during a time of armed conflict. As shown above, these types of assistance form a central component of States’ toolkits for times of crisis. Still, by its nature, such aid cannot help but deviate from strict impartiality and neutrality.
A clue for the resolution of this conundrum may be found in repeated calls made by representatives of established humanitarian agencies concerned with the trend of “blurring the lines” between military, political and humanitarian efforts. For instance, in December 2009 the president of MSF told an audience composed primarily of NATO military personnel that “we have no principled objection to military units delivering aid as part of the war effort [or] to aid being part of hearts and minds campaigns”.Footnote 150 What is key, he insisted, is that “[s]uch aid should not be attached to the term ‘humanitarian’”.Footnote 151 Similar public statements have been made on a number of occasions by leading representatives of the ICRC.Footnote 152
Although these comments were not made in relation to the legal basis of impartiality and neutrality, they confirm the need for a more nuanced understanding of the role these principles play vis-à-vis the relevant actors in modern-day conflicts. To describe them as generally and uniformly binding on all actors involved in the provision of aid only results in conceptual confusion and fruitless accusations of violation on part of those actors who cannot by the nature of some of their activities fully abide by these principles. At the same time, States should refrain from appropriating the terminology of humanitarian assistance for activities inconsistent with humanitarian principles. It needs no emphasis that doing so undermines genuine humanitarian efforts, creates the pretext for arbitrary refusal of aid, and even increases the risk that humanitarian personnel will be targeted during armed conflicts.
As a matter of international law, the principles of impartiality and neutrality play an important role, although they are not endowed with general binding force. A clear understanding of the legal scope and impact of the two principles – particularly insofar as States are concerned – is essential for the accurate calibration of expectations that are legitimately placed on various humanitarian actors. Only in this way may we advance Pictet's call for conceptual clarity of IHL while at the same time heeding the legacy of Solferino, which forever reminds us of the importance of principled and efficient humanitarian action.
