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“Droit” or “devoir d'ingérence”and the right to assistance: the issues involved

Published online by Cambridge University Press:  13 January 2010

Yves Sandoz
Yves Sandoz*
Affiliation:
Member of the ICRC Executive Board, Director of the Department for Principles, Law and Relations with the Movement
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Extract

Humanitarian issues have hardly ever before been given so much publicity by debates over what some people have described as the “droit” or “devoir d'ingérence”, which is then linked with the notion of the right to assistance. At the various levels at which the problem is perceived, the public at large, the media and legal experts have become involved in lively and even heated debates.

Type
Humanitarian Assistance
Information
International Review of the Red Cross (1961 - 1997) , Volume 32 , Issue 288 , June 1992 , pp. 215 - 227
Copyright
Copyright © International Committee of the Red Cross 1992

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Footnotes

1

One of the proponents of the “droit d'ingerence”, Professor Bettati, himself notes that “l'ingerence” does not denote a given juridical concept in “Un droit d'ingérence”, RGDIP, 1991/1993, pp. 639–670, ad p. 641. Furthermore there is, to our knowledge, no official English translation of the terms “droit d'ingérence” and “devoir d'ingerence” which accurately conveys their French connotation. Referring to recent English-language works on the subject, we noted that some authors use the literal translation of these concepts, i.e., “right to interfere/duty to interfere”, others prefer to use “right to intervene/duty to intervene”. As we consider that these terms do not render exactly the meaning of “droit/devoir d'ingérence” and are not interchangeable, we have chosen to leave these concepts in French in the present article, given that their meaning and scope are explained in the article.

See also International Law and the Use of Force by States, Ian Brownlie, Oxford University Press, 1968, pp. 338–342.

References

2 See Sandoz, Yves, “Usages corrects et abusifs de l'emblème de la croix rouge et du croissant rouge”, in Assisting the Victims of Armed Conflicts and Other Disasters, ed. Kalshoven, Frits, Nijhoff, pp. 117–125, ad pp. 118–119.Google Scholar

3 Cf. Art. 35, para. 1 of the Charter of the United Nations.

4 Cf. Article 51 of the Charter. The notion of armed attack has, however, given rise to various interpretations and much debate; see in particular on this subject: Cassese, Antonio, “Commentaire de l'article 51” in: La Charte des Nations Unies. Commentaire article par article, under the direction of Jean-Pierre Cot and Alain Pellet, Economica/Bruylant, Paris/Brussels, 1985, pp. 772 ff.Google Scholar

5 This concept and its history have been recalled in, inter alia, No. 33 of the Annales de droit international medical, 1986 Google Scholar, Commission médico-juridique, Monaco.

6 The text of which may be found in, inter alia: The Work of the International Law Commission, Fourth edition, United Nations, New York, 1988, pp. 141–143.

7 Even though the arguments against such a derogation generally appear to prevail, as may be seen in particular in the resolution adopted on this subject by the Institute of International Law at its session in Santiago de Compostela, September 13, 1989 (Resolution No. 5).

8 Cf. Art. 2 of the Charter.

9 Cf. in particular Art. 33 of the Convention relating to the Status of Refugees of 28 July 1951.

10 Cf. Article 1 common to all four Geneva Conventions, and Article 1 of their Additional Protocol I of 1977.

11 Cf. in particular Condorelli, Luigi and Boisson de Chazournes, Laurence, “Quelques remarques à propos de l'obligation des Etats de respecter et faire respecter le droit international humanitaire ‘en toutes circonstances’” in Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, Swinarski, C., ed., ICRC/Martinus Nijhoff Publishers, Geneva, 1984, pp. 17–36.Google Scholar

12 Article 5, paragraph 2 c) of the Statutes of the International Red Cross and Red Crescent Movement.

13 A role also provided for in the Movement's Statutes: cf. in particular Article 5, paragraph 2 d).

14 Article 103 of the Charter states that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. Concerning the interpretation and application of this article, cf. Flory, Thiébaut, “Commentaire de Tart. 103”, La Charte des Nations Unies: Commentaire article par article, op. cit. (in note 4), pp. 1381–1386.Google Scholar

15 Cf. Art. 26 and 27 of the First Geneva Convention of 12 August 1949.

16 Cf. Art. 24 of the First Convention.

17 Cf. Art. 26 and 27 of the First Convention.

18 Cf. Art 44 of the First Convention.

19 Cf. Art. 5, para. 4 b) of the Statutes of the International Red Cross and Red Crescent Movement.

20 Cf. on this subject particularly de Courten, Jean and Maurice, Frédéric, “ICRC activities for refugees and displaced civilians”, IRRC, No. 280, 01–02 1991, pp. 9–21.CrossRefGoogle Scholar

21 According to the wording used in Article 70 of Additional Protocol I.

22 Cf. in particular on this subject Favez, Jean-Claude, Une mission impossible? Le CICR, les déportations et les camps de concentration nazis, Editions Payot, Lausanne, 1988.Google Scholar

23 Although we do not wish to re-open here a debate on the attitude of the ICRC towards the extermination of civilians, particularly Jews, during the Second World War, it should be noted that the ICRC, contrary to popular belief or frequent claims, did not possess any important information about this tragedy which was not also known to the Allied governments.

24 See below Torrelli, Maurice, “From humanitarian assistance to “intervention on humanitarian grounds?”, pp. 228–248 CrossRefGoogle Scholar, and Plattner, Denise, “Assistance to the civilian population: the development and present state of international humanitarian law”, pp. 249–263.CrossRefGoogle Scholar

25 See in particular the following reports: “Respect for International Humanitarian Law — National Measures to implement the Geneva Conventions and their Additional Protocols in Peacetime (C.I/4.1/1); Implementation of International Humanitarian Law — Protection of the Civilian Population against Famine in Situations of Armed Conflict” (C.I/4.2/2); “Implementation of International Humanitarian Law — Protection of the Civilian Population and Persons hors de combat” (C.I/4.2/1); “Reaffirmation and Development of International Humanitarian Law — Protection of Victims of Non-international Armed Conflicts from the Effects of Hostilities” (C.I/6.1/1); “Reaffirmation and Development of International Humanitarian Law — Information concerning Work on International Humanitarian Law Applicable to War at Sea” (C.I/6.2/1); “Reaffirmation and Development of International Humanitarian Law — Prohibitions or Restrictions on the Use of Certain Weapons and Methods in Armed Conflicts — Promotion of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons of 10 October 1980, together with its Three Protocols” (C.I/6.3.1/1); “Reaffirmation and Development of International Humanitarian Law — Prohibitions or Restrictions on the Use of Certain Weapons and Methods in Armed Conflicts — Developments in relation to certain Conventional Weapons and New Weapons Technologies” (C.I/6.3/2/1). Mention should also be made of the report “Respect for International Humanitarian Law: ICRC Review of Five Years of Activity (1987–1991)” which was to have been presented by the ICRC President and has been reproduced in IRRC, No. 286, 01–02 1992, pp. 74–93.CrossRefGoogle Scholar