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Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need Under any Circumstances

Marie-José Domestici-Met

 

Abstract

Although humanitarian action is a common expression, there is little legal theoretical work upon this precise wording. The Geneva law provides for a regime applicable in case of armed conflict, which is commonly construed as encompassing both humanitarian assistance and humanitarian protection. Humanitarian assistance consists of the provision of physical services (medical care, food, shelter, etc.), whereas protection, in its legal meaning, provides immunity due to a prohibition of killing, wounding or offending dignity. Humanitarian action can be considered as covering both. Additionally, it also refers to field activities conceived in favour of the human being.

But humanitarian assistance also occurs outside armed conflicts, and outside international humanitarian law (IHL) provisions, e.g. in front of natural catastrophes. And humanitarian protection, too, has an existence outside the scope of IHL: namely in favour of refugees.

Obviously, both humanitarian assistance - be it granted during an armed conflict or not – and protection – be it granted by IHL or by another body of law – are subject to violations and exposed to a lack of effectiveness. But humanitarian assistance is much more popular than protection, probably, since it is more visible.

Therefore, the fact that the humanitarian assistance regime is insufficient to guarantee the actual delivery of assistance has come to the forefront sooner and with a more acute intensity. For the sake of providing a sufficient assistance, many improvements have been looked for by humanitarian workers and, then, by the United Nations (UN) on behalf of the International community.

Therefore, this article consists of three parts that will be published in the subsequent issues.

A first paper will show humanitarian assistance looking for a better legal regime. It will end upon an assessment: for the sake of the human being the UN have reached a point where assistance and protection are no longer that distinct, and where protection is not only defined as a legal immunity. This blurring of lines does not appear as an efficient solution. Hence, the international community has gone further with a new concept: the responsibility to protect.

The second paper will show how responsibility to protect was put forward and which scope it has been assigned up to now.

The third paper will try and advocate for an enlargement of the given scope of the responsibility to protect that could become way to ensure an efficient humanitarian action, under its two aspects: assistance and protection.

 

Part I:

Humanitarian assistance existed prior to international humanitarian law (IHL). However, the existence of a legal regime of the humanitarian assistance goes back to the very origin of IHL. The Geneva law provides for a regime applicable in the case of armed conflict, which is commonly construed as encompassing both humanitarian assistance and humanitarian protection. Humanitarian assistance consists of the provision of physical services (medical care, food, shelter, etc.), whereas protection, in its legal meaning, provides immunity due to a prohibition of killing, wounding or offending dignity. Humanitarian action, even though no official definition of it has been enshrined in the Conventions, can be considered as covering both, and as referring to field activities conceived in favour of the human being.

But the implementation of humanitarian assistance has quickly proven to be difficult, due to the changes in geopolitics and in warfare. And the doctrine as well as the UN have tried to make the assistance efficient. Along this way, the UN tackled the theme of protection.

 

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