Introduction
Analyses of the humanitarian principles of humanity, neutrality, impartiality and independence often focus on the principles’ meaningsFootnote 1 and/or the challenges of applying them in practice,Footnote 2 whether in peacetime disasters or during armed conflict. This article steps back to address foundational but somewhat neglected questions about whether these principles can accurately be designated “the” humanitarian principles; about how they came to govern the whole humanitarian sector; about their legal character; and about their normative content and, more fundamentally, whether the principles can even have fixed meanings.
Inherent in this analysis is an argument about the importance of analyzing the principles from the disciplinary perspectives of history and law. The humanitarian principles are often covered ahistorically,Footnote 3 as if how they came to govern international humanitarian action is unimportant because their value is evident.Footnote 4 Legal analysis is equally scant – the limited international law scholarship that does exist relates mostly to the principles of neutrality and impartiality,Footnote 5 likely because the latter features in the Geneva Conventions,Footnote 6 their Additional ProtocolsFootnote 7 and the International Court of Justice's (ICJ) Nicaragua judgment,Footnote 8 while neutrality has an autonomous international humanitarian law (IHL) meaning. There is one piece addressing neutrality and impartiality as well as humanity.Footnote 9
These gaps in the literature are significant. While it is widely known that the humanitarian principles are based on the first four Fundamental Principles of the International Red Cross and Red Crescent Movement (the Movement),Footnote 10 this is typically stated without substantiation or attribution.Footnote 11 Further, this common knowledge about the principles’ origin seems to have precluded analysis of how the principles of one organization – albeit a critically important one in the humanitarian field – came also to apply to the sector's other major categories of actor: non-governmental organizations (NGOs) and organizations of the United Nations (UN) system.Footnote 12 And legal analysis is important to counter inaccurate claims about the principles being “binding on States and other humanitarian actors as a matter of international law”,Footnote 13 particularly IHL, and having objective meanings. Drawing on historical research and legal analysis, which builds on the work of Mačák and Weller,Footnote 14 this article demonstrates that while the humanitarian principles do have common roots in the Fundamental Principles of the Movement, their legal character and normative content are inherently relative, depending on the source of the principle in question for the humanitarian actor concerned.
The article begins by defining the notion of “humanitarian principles” and determining whether and on what basis certain principles constitute “the” humanitarian principles. The following section then draws on archival and interview research, as well as secondary sources, to articulate the history of how the principles became relevant first to the Movement and subsequently diffused to humanitarian NGOs and the UN system. The third section analyzes the principles’ legal character in general and in relation to each of the above-mentioned categories of humanitarian actor, plus States, demonstrating that whether the principles are legally binding for a given humanitarian actor depends on their source for that actor. The third section also analyzes the principles’ normative content, demonstrating that each principle does not – and, legally, cannot – have one fixed or objective meaning; while there are common understandings of the principles, legally each principle's normative content flows from its source for the actor in question. The final section summarizes and concludes.
The notion of “the” humanitarian principles
The term “humanitarian principles” (also known as “principles of humanitarian action”) refers to doctrine to which humanitarian actors – including the components of the Movement, NGOs, relevant entities of the UN system, and States – adhere in planning and carrying out humanitarian work, whether in peacetime disasters or during armed conflict, with a view to centring its rationale, maximizing access and operational effectiveness, and limiting negative externalities.
Humanity, neutrality, impartiality and independence are often identified as the humanitarian principles, for example by UN bodies such as the Office for the Coordination of Humanitarian Affairs (OCHA)Footnote 15 and the Office of the UN High Commissioner for Refugees (UNHCR);Footnote 16 by the African UnionFootnote 17 and European Union (EU);Footnote 18 in the Sphere Handbook;Footnote 19 and in academic literature.Footnote 20 However, these four are not the only humanitarian principles – some organizations use them along with other additional principles. For example, there are seven Red Cross and Red Crescent Fundamental Principles: humanity, impartiality, neutrality, independence, voluntary service, unity and universality. The Humanitarian Accountability Partnership (HAP) Standard Principles are humanity, impartiality, neutrality, independence, participation and informed consent, duty of care, witness, redress, transparency and complementarity.Footnote 21 The 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief Footnote 22 (Code of Conduct) includes the principles of humanity, impartiality and independence (framed hortatorily), a neutrality-like principle and six additional principles:
1. The humanitarian imperative comes first [humanity].
2. Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone [impartiality].
3. Aid will not be used to further a particular political or religious standpoint [cf. neutrality].
4. We shall endeavour not to act as instruments of government foreign policy [independence].
5. We shall respect culture and custom.
6. We shall attempt to build disaster response on local capacities.
7. Ways shall be found to involve programme beneficiaries in the management of relief aid.
8. Relief aid must strive to reduce future vulnerabilities to disaster as well as meeting basic needs.
9. We hold ourselves accountable to both those we seek to assist and those from whom we accept resources.
10. In our information, publicity and advertising activities, we shall recognise disaster victims and dignified humans, not hopeless objects.Footnote 23
The third principle is similar but not identical to neutrality. While it provides that aid cannot be instrumentalized for political or religious ends, the Code of Conduct goes on to specify that humanitarian actors have “the right … to espouse particular political or religious opinions”.Footnote 24 Neutrality, by contrast, is typically understood as precluding humanitarian actors from taking sides in hostilities or engaging in “controversies of a political, racial, religious or ideological nature”.Footnote 25 The Code of Conduct's departure from the typical understanding of neutrality is not surprising, as neutrality is the most controversial of the humanitarian principlesFootnote 26 and is explicitly rejected by some NGOs. Oxfam's principles, for example, are limited to impartiality and independence.Footnote 27 Doctors Without Borders (Médecins sans Frontières, MSF) considered dispensing with neutrality but ultimately retained the principle.Footnote 28
Prior to 2003, the UN system used fewer than four principles.Footnote 29 For example, the General Assembly recalled in 1990 that “in the event of natural disasters and similar emergency situations, the principles of humanity, neutrality and impartiality must be given utmost consideration by all those involved in providing humanitarian assistance”.Footnote 30 The UN system's current humanitarian architecture was created in 1991 by General Assembly Resolution 46/182.Footnote 31 The resolution's substantive portion, an annex, begins with “Guiding Principles”. The second principle provides that “[h]umanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality”;Footnote 32 independence is not mentioned. This tripartite formulation was subsequently reaffirmed by both the General AssemblyFootnote 33 and the Security Council.Footnote 34 It is not that the General Assembly deemed independence unimportant; rather, there was no role – in an international organization comprised of and responsive to member States – for a principle understood at the time to mean autonomy from States and international organizations.Footnote 35 The UN's 1998 Guiding Principles on Internal Displacement also do not mention independence, nor do they mention neutrality. Mirroring the relevant Additional Protocol rules on humanitarian relief operations in armed conflict,Footnote 36 Principle 24(1) provides that all humanitarian assistance to internally displaced persons (IDPs) “shall be carried out in accordance with the principles of humanity and impartiality and without discrimination”.Footnote 37
In its Resolution 58/114 of 2003, the General Assembly recognized that independence “is also an important guiding principle for the provision of humanitarian assistance”.Footnote 38 Since the adoption of this resolution, when they invoke humanitarian principles, both the General Assembly and the Security Council typically list the four.Footnote 39 However, the International Law Commission's (ILC) 2016 Draft Articles on the Protection of Persons in the Event of Natural Disasters (ILC Draft Articles) do not mention independence. Article 6 notes that “[r]esponse 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 40 The summary of the debate relating to this article notes that “suggestions included adding a reference to the principle of independence”; no explanation is provided as to why this suggestion was not retained.Footnote 41
EU member States are governed by fewer than four principles. The Treaty on the Functioning of the European Union (TFEU) 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 42 This use of non-discrimination as a distinct principle is unusual (though similar to the Guiding Principles on Internal Displacement discussed above); in conceptualizations where the humanitarian principles are humanity, neutrality, impartiality and independence, non-discrimination is typically understood as a dimension of impartiality.Footnote 43
Academics also have varying conceptions of the humanitarian principles. Slim identifies thirty-three principles “routinely used in the pursuit of humanitarian action”.Footnote 44 Mackintosh (writing before 2003) omits independence.Footnote 45 Examples of the different humanitarian principles used or recognized by multilateral and joint initiatives, individual NGOs, the Movement and select States, as well as in the UN system, are provided in Annex 1.
Given these variations, the basis on which humanity, neutrality, impartiality and independence are often identified as the humanitarian principles is not immediately clear. Slim's classification of the thirty-three humanitarian principles that he identifies is instructive in this regard. He articulates four categories of humanitarian principles: principles in law;Footnote 46 principles of action; principles of dignity, participation and stewardship; and principles of effectiveness.Footnote 47 Perhaps, then, what many practitioners describe as the humanitarian principles are more accurately described using the alternative formulation “principles of humanitarian action”. Indeed, Slim's “principles of action” are humanity, impartiality, neutrality and independence.Footnote 48
Humanity, neutrality, impartiality and independence might also be singled out because they are particularly important. When additional principles are mentioned, humanity, neutrality, impartiality and independence are typically listed first, as in the examples above. In relation to the International Committee of the Red Cross (ICRC), Forsythe explains that of “the official seven Red Cross principles that are supposed to guide activities of the Movement … only the first four really count”.Footnote 49 Similarly, Barnett notes that of the seven Fundamental Principles of the Movement, humanity, neutrality, impartiality and independence are “most important”.Footnote 50
Terming humanity, neutrality, impartiality and independence “the” humanitarian principles obscures the fact that some actors use more principles, while others have employed fewer. To account for this, these four principles are here conceptualized and often termed – where it is not grammatically cumbersome to do so – the “core humanitarian principles”,Footnote 51 based on their particular importance and the fact that humanitarian practitioners often speak of the “core four”.Footnote 52
It is also worth addressing the order in which the principles are enumerated. Listing humanity, neutrality, impartiality and independence in this order is typical in the UN system. This ordering reflects the adoption – as discussed above – of the first three principles in 1991, followed by independence in 2003. In the Movement, the order of neutrality and impartiality is reversed: humanity, impartiality, neutrality and independence. This ordering is intentional and meaningful: in his commentary on the Fundamental Principles, Pictet explains that they “do not all have the same importance. They have a hierarchical order, indicated … by the sequence in which they are presented”.Footnote 53 Other actors tend to use either the UN or the Movement order without articulating any rationale for the sequence employed.
The history of the core humanitarian principles
There is little detailed scholarship on how the core humanitarian principles came to govern international humanitarian action. When the principles’ history is addressed, it is in terms of vague links to the ICRC or the Movement more generally. For example, Weiss explains that the ICRC derived the core humanitarian principles “after decades of experience about which principles were most effective in accessing war victims” and that they “subsequently became the mantra of all humanitarians”.Footnote 54 An OCHA note on the core humanitarian principles explains that they “are derived from the Red Cross Movement's ‘fundamental’ principles”.Footnote 55 In his important history of humanitarianism, Barnett explains that in elaborating the Movement's Fundamental Principles, ICRC officials were fully “aware that they were debating not only the principles of the ICRC but also humanitarianism writ large”.Footnote 56 Such accounts do not illuminate how the core humanitarian principles came to govern humanitarian actors outside the Movement. Indeed, Glasman explains that principles
are omnipresent in humanitarian discourse, but little interest is shown in their history. They are often regarded as being timeless: they are vaguely linked to the Red Cross, often without any further clarification, and it is almost always said that they are universal. Just like Athena being born from the forehead of her father, Zeus, humanitarian principles seem to have emerged “ready made” from [ICRC founder] Henri Dunant's forehead. However, this magical vision of humanitarian principles is dangerous. It is based on realities that lack historical context and are therefore unarguable. In fact, these “universal” principles are the result of very real conflicts. They reflect interests that can be situated and dated.Footnote 57
There are distinct but connected histories of the principles in relation to NGOs, on the one hand, and the UN system, on the other. These categories of actor are addressed in turn below. The Movement is the root of the humanitarian principles for both, so it is addressed first.
The International Red Cross and Red Crescent Movement
The history of the Red Cross and Red Crescent Fundamental Principles has been addressed by scholars of the Movement.Footnote 58 These principles were the genesis of the core humanitarian principles for both NGOs and the UN system, so their history merits broader attention. In 1859, Swiss businessman Henry Dunant witnessed the bloody aftermath of the Battle of Solferino, part of the war to unify Italy. The extent of the carnage overwhelmed both sides’ capacity to care for wounded soldiers. Dunant mobilized a local volunteer response and, following his return to Geneva, authored an influential book about his experience.Footnote 59 Its ideas led to the founding of the ICRC in 1863Footnote 60 and to the adoption in 1864 of the very first Geneva Convention on assistance to wounded combatants (1864 Geneva Convention).Footnote 61 Antecedents to the Movement's Fundamental Principles – and thus to the core humanitarian principles – of neutrality, humanity and impartiality are evident in this treaty. Article 1 of the 1864 Geneva Convention provides that “[a]mbulances and military hospitals shall be recognized as neutral”, while Article 2 relates to the neutrality of their personnel. Article 5 provides for the neutrality of local people who “bring help to the wounded”; their assistance is sought based on appeals “made to their humanity”.Footnote 62 Also neutral, under Article 6, are evacuation parties collecting wounded combatants from the field. Article 7 establishes a distinctive flag and armlet to denote the neutrality of hospitals, ambulances, evacuation parties and relevant individuals and personnel. Impartiality is evident in Article 6, which provides that “[w]ounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”.Footnote 63 These three principles inspired by the 1864 Geneva Convention, as well as additional principles drawn from other sourcesFootnote 64 such as ICRC co-founder Gustave Moynier's 1874 pamphlet “Ce que c'est que la Croix-Rouge”,Footnote 65 governed the Movement informally until 1921.
In 1921, Movement principles were written down for the first time in the ICRC's Revised Statutes. The 1921 Statutes list four principles: impartiality; political, religious and economic independence; the Movement's universality; and the equality of its members.Footnote 66 In 1946, these four principles were affirmed and supplemented by thirteen additional principles and six rules of application at a meeting of the Board of Governors of the League of Red Cross Societies (the League, as the International Federation of Red Cross and Red Crescent Societies (IFRC) was then known) held in Oxford.Footnote 67 The seventeen 1946 principles were reaffirmed in 1952 at the 18th International Conference of the Red Cross in Toronto.Footnote 68
The 1952 principles were then analyzed by ICRC officialFootnote 69 Jean Pictet in his doctoral thesis on Movement doctrine. Pictet's thesis was supervised by Max Huber – who served as ICRC president from 1928 to 1944Footnote 70 – and published in French in 1955 and 1956 across several issues of this journal, as well as in English as a treatise.Footnote 71 Pictet divided the seventeen principles into two categories: seven “fundamental principles” (humanity, equality, proportionality, impartiality, neutrality, independence and universality) and ten “organic principles” relating to the Movement's structure and functioning (selflessness, free service, voluntary service, auxiliarity, autonomy, multitudinism, equality of the National Red Cross and Red Crescent Societies (National Societies), unity, solidarity and foresight).
The “whole Red Cross Movement took keen note of Pictet's work”.Footnote 72 The Japanese National Society proposed that Pictet's principles become official Movement doctrine, leading to the establishment of a joint ICRC–League commission.Footnote 73 The commission “worked out its own simplified draft and submitted it to the Standing Commission of the International Red Cross”, which then proposed a slightly amended draft to the Council of Delegates of the International Red Cross.Footnote 74 The Council unanimously adopted the Standing Commission's draft with minor amendments in 1961.Footnote 75 The Red Cross and Red Crescent Fundamental Principles were formally “proclaimed” by the whole Movement in 1965 at the 20th International Conference of the Red Cross in Vienna.Footnote 76 In 1979 and 1980, Pictet published a nine-part commentary on the Fundamental Principles,Footnote 77 making him both their architect and an important authority on their meaning.Footnote 78 The Fundamental Principles were reaffirmed at the 25th International Conference in 1986, when they were incorporated into the preamble to the Statutes of the International Red Cross and Red Crescent Movement (Red Cross Statutes).Footnote 79
Glasman provides a rare critical account of Pictet's formulation of the Fundamental Principles within his monograph on the history of the principle of impartiality.Footnote 80 He explains that impartiality originates only in part in Article 6 of the 1864 Geneva Convention. Quoted above,Footnote 81 this provision prohibits nationality-based discrimination. Glasman argues that impartiality's additional proportionality dimension – impartiality requires that humanitarian actors provide assistance without discrimination and proportionate to need – originates not in the 1864 Geneva Convention but in Pictet's doctoral thesis. The thesis clearly articulates the proportionality element: “les hommes qui souffrent doivent être secourus; à détresse égale l'aide sera equivalente; à détresse inégale, elle sera conditionnée par l'importance des besoins et leur urgence”.Footnote 82 The same is evident in the Fundamental Principles adopted in 1965: impartiality “makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve suffering, giving priority to the most urgent cases of distress.”Footnote 83
According to Glasman, the ICRC waged an ultimately successful “moral and legal struggle for several years to ensure that Pictet's principles were adopted by the entire movement”.Footnote 84 Glasman explains that Pictet “invented” impartiality's proportionality dimension, and the ICRC campaigned for it, not only “to address ethical issues” – proportionality provides humanitarian actors with an ethical framework through which to apportion assistance in circumstances where not all urgent needs can be addressed – “but also to champion the interests of the ICRC itself in response to external attacks” from the League.Footnote 85 In 1946, the League proposed a reorganization of the Movement that was tantamount to “an outright attack on the ICRC”.Footnote 86 According to Glasman, Pictet's articulation of Red Cross principles
was the main weapon of the [ICRC's] counter-attack. He formulated the principles in a way that could justify the moral authority of the [ICRC] within both the humanitarian field and the Red Cross movement. … It is clear from Pictet's work that he considered “impartiality” as a key tool to counter the … League's and National Societies’ ambitions. The National Societies … acted on national scales, which did not allow them to be purely humanitarian: “the National Societies of the Red Cross help above all those of their own nationality, which is normal, given the national character of these institutions”. The ICRC had the higher moral ground: It could allocate “aid measured solely by the extent of distress”.Footnote 87
Thus, Pictet's conceptualization of impartiality as also including proportionality (in addition to non-discrimination) allowed the ICRC to maintain its supremacy within the Movement. The balance of this section demonstrates how the influence of both the Movement and Pictet ultimately extended to the whole humanitarian sector.
NGOs
The core humanitarian principles came to govern humanitarian NGOs via the 1994 Code of Conduct, which propelled the core principles from the Movement to humanitarian NGOs more broadly. At its 1991 meeting in Budapest, the Movement's Council of Delegates – one of its two main governing bodiesFootnote 88 – adopted a resolution on the need for a code of conduct relating to “[h]umanitarian assistance in situations of natural and technological [human-made] disasters”.Footnote 89 The resolution noted the Council's concern “for the respect for the Fundamental Principles” and its awareness of “the essential role” of the Movement “in international humanitarian activities and related codification”.Footnote 90 The operative portion of the resolution “asks” the IFRC, “in consultation with the main relief organizations, to set up a group of experts to study the possibility of elaborating a Code of Conduct relative to humanitarian aid in situations of natural and technological disasters”, and “requests” the IFRC, “after consultation with the main relief organizations, to report on the outcome of that study to the next Council of Delegates”.Footnote 91
Around the same time, staff of several UK-based NGOs independently concluded that a code of conduct was needed to counter the threat that the end of the Cold War posed to humanitarian operations, and Oxfam-GB began collaborating with the IFRC to draft what would become the Code of Conduct. Hugo Slim, who in 1991 worked for Save the Children, explained that he and colleagues at other British NGOs expected that the end of the Cold War would change the impact of armed conflict on humanitarian actors. This was prescient. During the Cold War, conflicts were typically proxy wars involving major powers; their intensity confined humanitarian action to locations outside theatres of conflict, such as IDP and refugee camps. By contrast, humanitarian actors were often near the front lines of the civil wars that began or intensified following the end of the Cold War, such as in Bosnia, Liberia and Sierra Leone.Footnote 92
The next Council of Delegates was held in Birmingham in 1993. By this time, Peter Walker of the IFRC and Tony Vaux of Oxfam-GB had consulted the Steering Committee for Humanitarian ResponseFootnote 93 and completed a draft of the Code.Footnote 94 The Council of Delegates approved their draft and urged the IFRC and ICRC to “take steps to promote the Code's implementation within the Movement and to disseminate the Code amongst disaster response agencies, encouraging them in turn to endorse the Code through their governing bodies”.Footnote 95
In 1994, the IFRC, the ICRC and six NGOs – Caritas, Catholic Relief Services, the Lutheran World Federation, Oxfam, Save the Children and the World Council of Churches – finalized the Code of Conduct. It includes the ten principles cited above,Footnote 96 three of which are essentially humanity, impartiality and independence; there is also a principle similar but not identical to neutrality. The 26th International Conference of the Red Cross and Red Crescent in 1995 took note of and welcomed the Code and invited States and National Societies to “encourage NGOs to both abide by the principles and spirit of the Code and consider registering their support for the Code” with the IFRC.Footnote 97 As of July 2022, the Code of Conduct had been signed by nearly 900 organizations.Footnote 98
Strong evidence for the Code of Conduct's influence over the humanitarian principles employed in the NGO sector comes from other lists of principles adopted by NGO groups (or groups including NGOs) prior to and following 1994: there is a clear shift towards the core humanitarian principles after 1994. For example, a “handbook for practitioners” published in 1993 articulates the Providence Principles: relieving life-threatening suffering, proportionality to need, non-partisanship, independence, accountability, appropriateness, contextualization and subsidiarity of sovereignty.Footnote 99 By contrast, the 1995 Mohonk Criteria are humanity, impartiality, neutrality, independence and empowerment.Footnote 100
The Code of Conduct was “strongly influenced by” the Fundamental Principles,Footnote 101 which is not surprising given that one of its lead drafters was IFRC staff. After the Code of Conduct had been adopted by the six sponsoring organizations and other NGOs, these organizations would of course go on to incorporate its principles within their own operations, marking the beginning of the diffusion and then entrenchment of the core humanitarian principles outside of the Movement. There is thus a clear timeline that begins with the formal adoption by the Movement of its seven Fundamental Principles in 1965. In and after 1994, the Code of Conduct carried four of these Fundamental Principles beyond the Movement to humanitarian NGOs.
The UN system
Prior to 1991, the “focal point” within the UN system for “matters related to disaster relief and disaster mitigation” was the Office of the UN Disaster Relief Co-ordinator.Footnote 102 The genesis of the resolution that would change this – General Assembly Resolution 46/182 – was described to me by former UN Deputy Secretary-General Jan Eliasson in an interview. From 1992 to 1994, he served as the UN's first Undersecretary-General for Humanitarian Affairs and Emergency Relief Coordinator, a position created by Resolution 46/182.Footnote 103 Prior to this, from 1988 to 1992, Eliasson was Sweden's Permanent Representative to the UN in New York. During this time, he had regular informal meals with other UN ambassadors. Around 1989, they began to discuss the challenges that would likely emerge following the end of the Cold War. They predicted that conflicts would increasingly occur within – rather than between – States, and that such non-international armed conflicts (NIACs) would particularly affect civilians, but State sovereignty would complicate the UN's humanitarian response. The solution, they concluded, was to reform the UN's humanitarian response architecture.Footnote 104 The challenge in this regard was twofold: to get the idea on the General Assembly's agenda, and to shape the resulting General Assembly resolution.Footnote 105
The first challenge was addressed through the European Council of the European Community. Its June 1991 Declaration on the Improvement of Emergency Assistance within the United Nations Framework recommended the “appointment of a high-level coordinator for emergency humanitarian aid” who would, among other things, chair “an inter-agency standing committee” to “coordinate assistance efforts”.Footnote 106 This Declaration was followed up with a letter dated 16 August 1991 to the UN Secretary-General from the Permanent Representative of the Netherlands, writing on behalf of all member States of what was then the European Community. He formally requested that “strengthening … the coordination of [UN] humanitarian emergency assistance” be added to the agenda for the General Assembly's 46th session, to be held in the autumn of 1991.Footnote 107 The item was added.Footnote 108
With the UN's humanitarian architecture on the General Assembly agenda, the second challenge was to shape the Assembly's deliberations. To tackle this, the informal group of Permanent Representatives in New York concluded, given Sweden's established interest in humanitarian affairs, that Eliasson should run for the vice-presidency of the Economic and Social Council (ECOSOC). ECOSOC makes or initiates “studies and reports with respect to international economic, social, cultural, educational, health, and related matters”, and makes “recommendations with respect to any such matters to the General Assembly”.Footnote 109 The ECOSOC vice-presidency would, accordingly, afford Eliasson the opportunity to influence ECOSOC's, and thus the General Assembly's, deliberations regarding the UN's humanitarian architecture.Footnote 110 Eliasson was elected in 1991; the agenda of ECOSOC's Second Regular Session of 1991, held in Geneva in July, thus included “Coordination Questions” as agenda item 12, including the “Response of the United Nations to Emergencies”.Footnote 111
The UN response to emergencies was addressed by ECOSOC's Third (Programme and Coordination) Committee from 8 to 11 July 1991. It produced the “outline for a [UN humanitarian] mandate … with the elements to be decided by the General Assembly”.Footnote 112 This outline is contained in the Chairman's Summary annexed to ECOSOC's 1991 annual report,Footnote 113 which was provided to General Assembly member States to background the deliberations that led to Resolution 46/182. The Summary covers four main topics: “prevention; preparedness; coordination and cooperation; and the relationship between emergency relief and development”.Footnote 114 Eliasson describes the process of drafting Resolution 46/182 as a “two-stage rocket”, with the Chairman's Summary that emerged from the ECOSOC Third Committee meetings in Geneva representing the first stage.Footnote 115 Indeed, the Third Committee topics, and a handful of others, are reflected in Resolution 46/182; the headings of the resolution's operative annex are “Guiding Principles”, “Prevention”, “Preparedness”, “Stand-By Capacity”, “Consolidated Appeals”, “Coordination, Cooperation and Leadership” and “Continuum from Relief to Rehabilitation and Development”.Footnote 116
Back in New York, Eliasson asked Samir Shihabi, then Permanent Representative of Saudi Arabia and President of the General Assembly, to convene an ad hoc committee in the Assembly, open to all member States, to negotiate what would become Resolution 46/182.Footnote 117 The committee met for the first time in October 1991, and thereafter for “intense negotiations”.Footnote 118 The committee spent a “long time” discussing humanitarian principles.Footnote 119 Accounts of the origins of the humanitarian principles in Resolution 46/182 are rare, though Wynn-Pope et al. state simply that humanity, neutrality and impartiality were included based on the Red Cross and Red Crescent Fundamental Principles.Footnote 120 Eliasson confirms that the principles were, indeed, “picked … up from the International Red Cross”.Footnote 121 Edward Tsui, a now-retired UN official who was also involved in drafting Resolution 46/182, recalls that this was because the drafters did not want to “reinvent the wheel”Footnote 122 – rather, they looked to the ICRC for “best practices” given its status as a highly respected humanitarian organization.Footnote 123 This historical link between the principles in Resolution 46/182 and the ICRC is today widely known among OCHA personnel.Footnote 124 General Assembly Resolution 45/100 – the earlier 1990 resolution which also mentions humanity, neutrality and impartiality and which may itself have been based on the Fundamental Principles – may also have been influential.Footnote 125 The origins of the core humanitarian principles, for NGOs as well as for the UN system, can thus be definitively traced to the Fundamental Principles of the Movement.
The final draft of Resolution 46/182 was ultimately supplied by Sweden.Footnote 126 Despite “weeks of difficult negotiation”,Footnote 127 including overnight on 18–19 December,Footnote 128 Resolution 46/182 was ultimately adopted by the General Assembly without a vote, a procedure reflecting strong consensus. However, while there was consensus among member States in their adoption of the principles, the next section demonstrates that there is little consensus among humanitarian actors regarding the principles’ legal character.
Legal character and normative content
Similar to their history, the humanitarian principles’ legal character is sometimes misconstrued. Mačák notes that impartiality and neutrality are “sometimes described as binding on States and other humanitarian actors as a matter of international law”,Footnote 129 citing several examples in this regard,Footnote 130 but further observes that “such assertions are usually accompanied by little or no analysis as to their specific legal basis”.Footnote 131 This is true not only of impartiality and neutrality, but of all four core humanitarian principles. Wynn-Pope et al., for example, state that the core humanitarian principles “are enshrined in modern-day international law as obligations of States and humanitarian actors”,Footnote 132 without providing any elaboration as to the source of such obligations or how they might bind NGOs, which can benefit from but are not subjects of international law.
The issue is pronounced in relation to IHL. Gillard observes that the humanitarian principles and IHL are “frequently conflated” and that there is often “an assumption that IHL is the source of the humanitarian principles”.Footnote 133 For example, a “topic guide” commissioned by the UK presents the humanitarian principles as if they are derived from IHL and does not distinguish between the core humanitarian principles and similarly termed, but distinct, IHL concepts.Footnote 134
The core humanitarian principles are also sometimes said to constitute international law in the context of disasters. The summary of the ILC's debate regarding Article 6 (on “Humanitarian Principles in Disaster Response”) of its Draft Articles notes that the “view was … expressed that the three principles [humanity, neutrality and impartiality] were well established in international law, as reflected in a number of international instruments”. However, there was also a contrary view that while the principles “were important … for the International Red Cross Movement, it was not clear that they were principles of international law”.Footnote 135 Ultimately, the ILC did not resolve this question. Its commentary on Article 6 notes that the principles “are considered by the Commission to constitute humanitarian principles that underlie disaster relief and assistance”, and that “[o]n this basis, the Commission did not find it necessary to determine whether these principles are also general principles of international law”.Footnote 136
Given the frequency with which the core principles are said to come from or constitute international law, particularly IHL, it is worth considering where this idea might originate. It is likely attributable to the use of “humanitarian” and “impartial” in the Additional Protocol provisions on humanitarian relief operations. Article 70(1) of Additional Protocol I (AP I), which governs international armed conflicts (IACs), provides that if “the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately” supplied, “relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Article 18(2) of Additional Protocol II (AP II) provides essentially the same in relation to NIACs. The words “humanitarian” and “impartial” as used in Articles 70(1) and 18(2) are terminologically similar to the core principles of humanity and impartiality; “without any adverse distinction” is a dimension of the principle of impartiality but is easily confused with the humanitarian principle of neutrality. It is thus not surprising to come across references such as this: “[the] humanitarian principles of impartiality and neutrality [have] their legal basis in Art. 70 [of AP I]”.Footnote 137 This statement is, however, inaccurate; for reasons explained below, the humanitarian principles do not have any general “legal basis” in IHL independent of their source for a particular humanitarian actor.
Inaccurate claims that the principles are international law may also “to some extent be explained by the perceived moral desirability” of the principles.Footnote 138 Nevertheless, it is important to counter the flawed idea that the principles constitute international law in some general sense. Here the analysis must proceed on a category-by-category basis because the principles’ legal character depends on their source, which varies by category of humanitarian actor. First, however, the analysis demonstrates that “principles” do not, on their own, create binding obligations. It then goes on to analyze the legal character, as well as the normative content, of the core humanitarian principles for the Movement, NGOs, the UN system and States. The analysis is summarized in a table at Annex 2, which provides a snapshot of the source of the obligation to act in accordance with, or voluntary commitment to follow, humanitarian principles for select actors within each category.
Legal character of the principles
The core humanitarian principles do not, in and of themselves, create binding obligations for humanitarian actors. In English, a principle is “a fundamental truth or proposition that serves as the foundation for a system of belief or behaviour or for a chain of reasoning”.Footnote 139 Principles are distinct from rules in that they do not themselves prescribe or proscribe conduct – rather, a principle expresses a moral norm that may guide conduct and from which a rule or set of rules may be derived. In legal theory, principles refer to “moral standards that do not apply in a conclusive and all-or-nothing fashion”; they “vary in the weight they have”.Footnote 140 Principles are thus higher-order norms that provide the rationale for rules but are not themselves binding. The Statute of the ICJ, which lists the sources of international law, provides a germane example: among such sources are “general principles of law recognized by civilized nations”,Footnote 141 which are not a source of international law qua principles, but because they are “recognized” as “law” by States. Thus, the English-language and legal meanings of “principle” are essentially the same and imply that the core humanitarian principles do not themselves create legal obligations. They may, however, create obligations for a particular humanitarian actor if that actor has translated the humanitarian principles into a binding rule or rules, as will be shown below.
The International Red Cross and Red Crescent Movement
Legal character
The component organizations of the Movement have had to act in accordance with the Movement's Fundamental Principles since 1965, when the 20th International Conference of the Red Cross proclaimed the “fundamental principles on which Red Cross action is based”.Footnote 142 While the Fundamental Principles have been binding for the ICRC, the IFRC and National Societies since 1965,Footnote 143 their character was clarified and affirmed by the Red Cross and Red Crescent Statues adopted in 1986. These provide that “the Movement shall be guided by its Fundamental Principles”.Footnote 144 In addition to this mandatory language, Haug summarizes the other ways in which the 1986 Statues impose the Fundamental Principles on Movement components:
A National Society may only be recognised by the ICRC if it respects the Red Cross principles. The ICRC itself – as already in earlier years – is given the role of disseminating and preserving the principles. The [IFRC] also shall fulfill its purpose of promoting National Societies and coordinating their activities, in particular in peacetime, in the context of the principles. The participants in Red Cross and Red Crescent Conferences and the members of the Council of Delegates of the Movement are expressly obliged to respect and maintain the principles during the meetings. New [in the 1986 Statutes] and specially important is the provision that the States parties to the Geneva Conventions have at all times to respect the fact that all components of the Movement are bound by its principles.Footnote 145
Indeed, the Red Cross Statutes provide that States party to the Geneva Conventions “shall at all times respect the adherence by all components of the Movement to the Fundamental Principles”.Footnote 146
Several provisions of the Geneva Conventions and Additional Protocols require States to grant certain facilities to Movement components operating in accordance with the Fundamental Principles. Under AP I, States undertake to grant “their respective Red Cross (Red Crescent, Red Lion and Sun) organizations the facilities necessary for carrying out their humanitarian activities … in accordance with … the fundamental principles” and to facilitate humanitarian assistance extended “in accordance … with the fundamental principles”.Footnote 147 States also agree that in occupied territory, “National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able to pursue their activities in accordance with Red Cross principles”.Footnote 148 The Fundamental Principle of impartiality receives particular support through provisions on the ICRC's right of initiative,Footnote 149 which is its “right to offer its services to all parties to any conflict, both international and non-international, on any matters that the ICRC considers as within its purview”.Footnote 150 The right of initiative is contingent on the ICRC acting impartially. Article 3 common to the four Geneva Conventions (common Article 3), which applies in NIACs, provides that an “impartial humanitarian body, such as the [ICRC], may offer its services to the Parties to the Conflict” (emphasis added). Common Article 9/9/9/10, which applies in IACs, states that the provisions of the Geneva Conventions “constitute no obstacle to the humanitarian activities which the [ICRC] or any other impartial humanitarian organization may … undertake” (emphasis added).
Thus, for the ICRC, the IFRC and National Societies, the core humanitarian principles – as well as the three further Fundamental Principles of the Movement – are binding via the Red Cross Statutes. Movement components’ statutory obligations to act in accordance with the Fundamental Principles in general, and particularly the principle of impartiality, are supported by the Geneva Conventions and their Additional Protocols.
Normative content
Since the 1986 Red Cross Statutes are now the primary source of the Fundamental Principles for the Movement, they provide the authoritative statement of their meaning for the Movement. Each of the seven Fundamental Principles is briefly described in the Statutes’ preamble in terms almost identical (there are a few minor grammatical changes) to those used when the Fundamental Principles were proclaimed in 1965.Footnote 151 Pictet provides more detailed explanations in his authoritative commentary on the Fundamental Principles.Footnote 152
Humanity is the Movement's “essential principle”.Footnote 153 The Statutes do not define it as such; rather, humanity is addressed entirely in terms of the Movement itself. The Statutes state:
The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples.Footnote 154
This self-referential explanation of humanity provides the Movement's “ideal, its motivation and its objective”.Footnote 155 A less Movement-specific understanding of humanity can be found in the ICRC's Professional Standards for Protection Work, which define the principle of humanity as a directive: “all people must be treated humanely in all circumstances”.Footnote 156
The Red Cross Statutes explain that impartiality “makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.”Footnote 157 It is thus evident, as explained above, that for the Movement, impartiality has two dimensions: non-discrimination (on the grounds listed) and proportionality. The latter means that “help available shall be apportioned according to the relative importance of individual needs and in their order of urgency”.Footnote 158
The principle of neutrality provides that in “order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature”.Footnote 159 Pictet explains that while neutrality “defines the attitude of the Red Cross towards belligerents and ideologies, it never determines its behaviour towards the human beings who suffer”.Footnote 160 The principle of neutrality thus explains ICRC president Peter Maurer's widely criticized but little understood meeting with Russian foreign minister Sergei Lavrov soon after Russia's illegal invasion of Ukraine.Footnote 161 In order to gain access to victims in the power of States – in this case in Russian-controlled or -occupied parts of Ukraine – the ICRC generally “abstains from making public pronouncements about specific acts committed in violation of law and humanity and attributed to belligerents”.Footnote 162
Independence relates to the relationship between the Movement and other actors. The Statutes provide that
[t]he Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.Footnote 163
Pictet identifies three dimensions of independence: economic, political and religious.Footnote 164 Further, he clarifies that while the Statutes only mention independence from governments, the principle is in fact broader, referring to all “outside forces”.Footnote 165 This includes (but is not limited to) “public authorities”,Footnote 166 “intergovernmental organizations”,Footnote 167 any “class, pressure group or even public opinion”,Footnote 168 and other humanitarian organizations.Footnote 169 Pictet nevertheless focuses the majority of his commentary on independence from governments. In this regard, he devotes considerable attention to the auxiliary status of National Societies, explaining how they can be independent from governments while still supporting government humanitarian functions.Footnote 170
While these articulations of the core humanitarian principles are specific to the Movement because they flow from its Statutes and from Pictet's commentary on the Fundamental Principles, they are also evident – given the Red Cross and Red Crescent origins described above – in the principles’ normative content for other actors, which are addressed below.
NGOs
Legal character
An NGO can only be bound by the core humanitarian principles through an internal governance document, such as its charter, and/or via any voluntary sectoral document, such as the Code of Conduct, that the organization may have signed. Both create obligations as a matter of institutional governance, but not as a matter of international law. For example, members of MSF agree to “honour” the principles contained in the MSF Charter, which include to provide assistance “irrespective of race, religion, creed or political convictions” (impartiality's non-discrimination dimension), to observe “neutrality and impartiality in the name of universal medical ethics” and to “maintain complete independence from all political, economic or religious powers”;Footnote 171 they are also bound by the organization's Chantilly Principles.Footnote 172 These commitments are opposable by MSF vis-à-vis its members (staff), but not between third parties and MSF or between third parties and individual MSF members. NGOs that have committed to the core humanitarian principles or some other set of humanitarian principles are often referred to as “Dunantist”, a term coined by Stoddard to describe organizations that “seek to position themselves outside of state interests”.Footnote 173 As discussed above in the section on “The Notion of ‘the’ Humanitarian Principles”, not all humanitarian NGOs commit to the core humanitarian principles.
In armed conflict, an NGO may act in accordance with one or more of the core humanitarian principles not, or not only, because this is required by an internal governance document and/or by the Code of Conduct, but because doing so may have consequences in relation to the treaty obligations of conflict parties. For example, Article 70(1) of AP I provides that
[i]f the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with [relief supplies], relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned.Footnote 174
AP I is directly binding on the parties to the conflict in question, but not NGOs. The effect of Article 70(1) on the NGO is indirect: if its activities are humanitarian and impartial and conducted without adverse distinction, then the party cannot arbitrarily withhold consent to the NGO's humanitarian relief operation.Footnote 175 Thus the NGO will act in accordance with the principles of humanity and impartiality not because it is treaty-bound to do so, but because acting in these ways privileges its operations under IHL. In short, a treaty can make it in an NGO's interests to act in accordance with humanitarian principles, but no treaty requires it. In addition to rendering the rules on humanitarian relief operations applicable, there are important additional practical reasons for NGOs to abide by the core humanitarian principles, such as operational security and effectiveness.
Normative content
The meanings of the core humanitarian principles for an NGO bound by them pursuant to an internal governance document depends on how the principles are defined in that document or, if they are not defined, how they are commonly understood within the organization. Nevertheless, given the principles’ common origins in the Fundamental Principles of the Movement, the existence of sectoral documents such as the Code of Conduct and the importance to humanitarian coordination of shared meanings, common understandings of the principles have emerged. These understandings that are common among NGOs are also shared with the UN system, and are outlined below. Additionally, there is rich literature on the meanings of the core humanitarian principles and the tensions between them and praxis,Footnote 176 which has influenced how the core principles are understood by NGOs.
The UN system
Legal character
Several provisions of General Assembly Resolution 46/182 make clear that it applies to the entire UN system.Footnote 177 The fourth preambular paragraph notes that the Assembly is mindful of the need “to strengthen further and make more effective the collective efforts of the international community, in particular the [UN] system, in providing humanitarian assistance”.Footnote 178 The resolution's operative paragraph adopts the text in the annex to strengthen “the coordination of emergency humanitarian assistance of the [UN] system”.Footnote 179 The resolution has been appropriately called “humanitarianism's ‘magna carta’”.Footnote 180
While Resolution 46/182 applies to the whole UN system, whether a given component of that system is bound by the resolution in general and by obligation to act “in accordance with the principles of humanity, neutrality and impartiality” in particular depends on its relationship with the General Assembly. This is determined by the UN Charter and, to a lesser extent, by established practice. General Assembly resolutions are not binding for member States,Footnote 181 nor are they binding for the specialized agencies, such as the Food and Agriculture Organization (FAO), which are distinct international organizations. The General Assembly is, however, “vested with an oversight role in relation to its fellow principal organs”, and its “ability to influence the actual functioning of its fellow organs varies depending on the particular principal organ”.Footnote 182 The General Assembly “has had a large influence on the functioning of the Secretariat, including the establishment and reform of its administrative structure”.Footnote 183 This competence enabled the General Assembly to create, with Resolution 46/182, the role of Emergency Relief Coordinator within the UN Secretariat, and a secretariat, now known as OCHA, to support this high-level official.Footnote 184 As OCHA was created by Resolution 46/182, it is clearly governed by that resolution.
The General Assembly can create subsidiary organs,Footnote 185 including funds, programmes and other forms of subsidiary organ. Funds and programmes relevant to humanitarian action established by the General Assembly include the UN Children's Fund (UNICEF),Footnote 186 the UN Development Programme (UNDP),Footnote 187 the UN Population Fund (UNFPA)Footnote 188 and the World Food Programme (WFP); the latter was established jointly by the General Assembly and FAO.Footnote 189 Other subsidiary entities engaged in humanitarian action include UNHCRFootnote 190 and the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).Footnote 191
Organs subsidiary to the General Assembly may be bound by Resolution 46/182 if there is a basis for this in the organ's governance structure. UNHCR is bound by 46/182 pursuant to its Statute, which provides that the High Commissioner acts “under the authority of the General Assembly” and must “follow policy directives given [to] him by the General Assembly”.Footnote 192 Indeed, as a matter of practice, UNHCR aims to operate in accordance with the core four principles.Footnote 193 UNRWA's Commissioner General is advised and assisted by an Advisory Commission composed of member States,Footnote 194 although the Commissioner General is ultimately “responsible to the General Assembly for the operation of the programme”.Footnote 195 UNRWA is thus also bound by Resolution 46/182. UNICEF, UNDP and UNFPA are not directly governed by the General Assembly, but by executive boards “responsible for providing inter-governmental support to and supervision of the activities of each fund or programme in accordance with the overall policy guidance of the General Assembly and [ECOSOC]”.Footnote 196 Such policy guidance includes Resolution 46/182. The core humanitarian principles are indeed apparent in the documentation of these funds and programmes, such as UNICEF's Core Commitments for Children in Humanitarian Action.Footnote 197 WFP is governed by an executive board composed of UN and FAO member States,Footnote 198 which is subject to policy guidance from the General Assembly and ECOSOC,Footnote 199 as well as from certain FAO bodies. WFP is thus also bound by Resolution 46/182. Indeed, the core principles appear in WFP's ethics document, which specifies that its “humanitarian response is rooted in the core humanitarian principles of humanity, neutrality, impartiality and operational independence”.Footnote 200
General Assembly Resolution 58/114 recognized in 2003 that independence “is also an important guiding principle for the provision of humanitarian assistance”.Footnote 201 This lacks the mandatory language of Resolution 46/182, and further, independence is addressed in a preambular paragraph rather than in the operative portion of Resolution 58/114. In treaties, “recitals in the preamble are not the appropriate place for stating obligations”;Footnote 202 the same is true of General Assembly resolutions. Thus, even components of the UN system over which the General Assembly has binding authority were not initially required to act in accordance with the principle of independence. More recently, however, General Assembly resolutions have routinely addressed independence alongside humanity, neutrality and impartiality and have not distinguished among the principles.Footnote 203 This practice suggests that independence is now equally binding for the UN system – indeed, the view among OCHA personnel is that member States expect humanitarian action of the UN system to abide by all four principles.Footnote 204
Resolutions 46/182 and 58/114 are not, however, the only sources of the core humanitarian principles for components of the UN system. Specific entities may be required to act in accordance with one or more of the core principles, as well as with other principles, pursuant to other resolutions of the General Assembly. For example, UNHCR's Statute – a General Assembly resolution – provides that the “work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social”.Footnote 205 Thus in addition to being bound to act in accordance with the principles in Resolutions 46/182 and 58/114, UNHCR is also required to operate apolitically and to be humanitarian and social.Footnote 206
Normative content
Neither General Assembly Resolution 46/182 nor subsequent Assembly resolutions recalling and/or reaffirming 46/182 define humanity, neutrality or impartiality. Resolution 58/114 does, however, define independence as “the autonomy of humanitarian objectives from the political, economic, military or other objectives that any actor may hold with regard to areas where humanitarian action is being implemented”.Footnote 207 The same definition of independence is used in subsequent General Assembly resolutions.Footnote 208 The documentation of relevant UN entities uses the same, or substantively the same, definition of independence.Footnote 209
While not defined in Resolution 46/182, humanity, neutrality and impartiality are defined in non-binding documentation published by OCHA, UNHCR, UNICEF, UNRWA and WFP; UNDP and UNFPA do not define the humanitarian principles in publicly accessible documentation. These definitions demonstrate a system-wide UN understanding of these principles based in the Fundamental Principles of the Movement. Of the three principles, there is the most variation in how humanity is defined, which can likely be attributed to the absence of a definition of humanity in the Red Cross Statutes. Despite these minor variations, the essential elements of humanity are the same: responding to human suffering and protecting or saving human lives. Neutrality means that UN humanitarian actors will not engage in controversies of an ideological, political, racial or religious nature, nor will they take sides in hostilities. Impartiality includes proportionality and non-discrimination dimensions: the former requires that assistance be provided according to need alone, while the latter means that assistance must be provided without distinction on the grounds of class, gender, nationality, political opinion, race or religious belief. UNICEF distinguishes between sex and gender identity and specifies additional prohibited grounds of discrimination: ethnicity, language, disability and sexual orientation. WFP also additionally specifies ethnic origin but omits class. The OCHA, UNHCR, UNICEF, UNRWA and WFP definitions of humanity, neutrality and impartiality are reproduced in full at Annex 3. Additionally, the ILC elaborates its understandings of humanity, neutrality and impartiality in its commentary on Article 6 of the Draft Articles, though these definitions are limited to the disaster context.Footnote 210
These definitions of the three Resolution 46/182 principles are understood in the UN system in their broader context as part of a set of guiding principles on UN humanitarian assistance. These guiding principles also include the requirement that the “sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the [UN] Charter” and that humanitarian assistance “should be provided with the consent of the affected country”.Footnote 211 The guiding principles also note that “[e]ach State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory”; the territorial State thus “has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory”.Footnote 212
States
Legal character
The core humanitarian principles are not binding on States as a matter of international law. For these principles to constitute international law, they would have to derive from one or more of the formal sources of international law listed in the Statute of the ICJ: treaties, customary international law and general principles of law.Footnote 213 Mačák has demonstrated that neither impartiality nor neutrality can be traced to any of these sources.Footnote 214 The same is true of humanity and independence.
While the Geneva Conventions and their Additional Protocols address humanitarian action in armed conflict and mention “humanity” in other contexts, they do not mention the humanitarian principles of humanity or independence. Rather, “humanity” features in terms of the principle of humane treatment and the Martens Clause,Footnote 215 both of which are distinct from the humanitarian principle of humanity. The Additional Protocols mention “humanitarian” in relation to the characteristics of relief actions, but not in the sense of imposing the principle of humanity on States in their humanitarian operations. Rather, as discussed above, conflict parties may not arbitrarily withhold their consent to relief operations that are “humanitarian”, as well as impartial and conducted without adverse distinction.Footnote 216
Further, there is no widespread State practice and opinio juris in humanitarian action, whether in armed conflict or in peacetime, that would elevate humanity and independence to the status of customary international law. States do, however, have an obligation under customary international law not to arbitrarily withhold consent to relief operations that are humanitarian, impartial and conducted without adverse distinction.Footnote 217
Finally, while there is no evidence that the independence of humanitarian action constitutes a general principle of law, it has been argued that “elementary considerations of humanity” constitutes one such general principle,Footnote 218 further to the ICJ's judgment in the Corfu Channel case.Footnote 219 However, Mačák points out that in the South West Africa cases decided later, the ICJ rejected the notion that humanitarian considerations can generate legal obligations.Footnote 220 He notes further that in Nicaragua, also decided subsequent to Corfu Channel, the ICJ limited “elementary considerations of humanity” to the narrower meaning contained in common Article 3.Footnote 221 Accordingly, like independence, humanity is not a general principle of law within the meaning of the Statute of the ICJ.
While the core principles are not binding on States under international law, UN member States are required to “consider” General Assembly resolutions.Footnote 222 Thus, the three principles in Resolution 46/182 and the Resolution 58/114 addition of independence are not irrelevant to States. Indeed, OCHA consistently stresses UN member States’ responsibility – if not their legal obligation – to uphold the core four principles and promote their implementation within the UN system.Footnote 223
While the core humanitarian principles are not binding on States as a matter of international law, this is not to say that certain States are not committed to upholding these or other humanitarian principles, in the sense of not impeding others’ capacity to comply with them. EU member States have committed to uphold humanitarian principles (but not all four core humanitarian principles) under the TFEU, which provides that “[h]umanitarian aid operations shall be conducted in compliance with … the principles of impartiality, neutrality and non-discrimination”.Footnote 224 States may also be required to uphold humanitarian principles as a matter of policy. For example, the UK's Humanitarian Reform Policy provides that “[h]umanitarian action … should be guided by the principles of humanity … neutrality … impartiality … [and] independence”.Footnote 225 The “core values” of the Office of US Foreign Disaster Assistance are “inspired by overarching and fundamental humanitarian principles of humanity, impartiality, and operational independence”.Footnote 226 Denmark, Finland and France have also committed themselves to the core humanitarian principles via policy instruments or operational guidance documents.Footnote 227 Germany commits itself to the core four principles, as well as to a focus on needs, to subsidiarity and to doing no harm.Footnote 228
States are also bound to respect the humanitarian principles if required to do so by the UN Security Council. Security Council resolutions are binding on member States when mandatory language is used (in such cases, resolutions are termed “decisions”).Footnote 229 When binding Security Council decisions mention the humanitarian principles, these typically require conflict parties to ensure humanitarian access so that humanitarian actors can deliver assistance in accordance with the principles;Footnote 230 they are not decisions requiring State compliance with the humanitarian principles as such. However, such decisions are not unheard of: regarding the situation in Darfur, the Security Council demanded Sudan and others respect the principles.Footnote 231 More often, though, Security Council resolutions relating to the principles are non-binding. In relation to the Democratic Republic of the Congo, the Security Council called on “all parties to respect the principles of neutrality and impartiality in the delivery of humanitarian assistance”.Footnote 232
The Security Council has also issued thematic resolutions mentioning the humanitarian principles. A 2009 resolution on the protection of civilians in armed conflict stressed “the importance for all, within the framework of humanitarian assistance, of upholding and respecting the humanitarian principles of humanity, neutrality, impartiality and independence”;Footnote 233 “upholding” is addressed to States and “respecting” to other humanitarian actors. More recently, the Security Council emphasized “the importance of the principles of humanity, neutrality, impartiality and independence in the provision of humanitarian assistance” and reaffirmed “the need for actors engaged in such assistance in situations of armed conflict to promote and fully respect these principles”.Footnote 234
Normative content
The principles’ content for States flows from applicable domestic or regional law or policy. Some States, such as the United States, do not define the principles. Others, such as the United Kingdom, do define the principles, in terms that are based on those of the Movement and are the same or substantially the same as those used in the UN system; select State definitions are reproduced in Annex 3.
While the content of humanitarian principles for States is determined by domestic or regional law or policy, it is worth noting that the ICJ has considered the nature of “humanitarian aid”. In Nicaragua, the Court defined such aid provided by States in terms of the first and second Fundamental Principles: humanity and impartiality. The Court cited the Movement's articulation of these principles, as proclaimed by the 20th International Conference of the Red Cross in 1965, exactly and in full; it did not mention neutrality or independence.Footnote 235 This is not to say that the ICJ regarded neutrality and independence as irrelevant. Rather, it is more likely that the Court focused on humanity and impartiality because these principles were the most pertinent to the issue under consideration: whether the United States’ provision of humanitarian aid solely to the Contras (and not to the Sandinistas) breached the international legal principle of non-intervention. The Court's invocation of the Fundamental Principles is further evidence of their profound influence in relation to the core humanitarian principles.Footnote 236
Conclusion
The core humanitarian principles are rooted in the Fundamental Principles of the Movement, the first four of which are humanity, impartiality, neutrality and independence. The core principles diffused from the Movement to humanitarian NGOs via the Code of Conduct, which was prepared at the suggestion of the Movement's Council of Delegates and drafted by the IFRC and Oxfam-GB; the IFRC drafter presumably drew inspiration from his organization's own Fundamental Principles. The core principles govern humanitarian action in the UN system pursuant to General Assembly Resolution 46/182 – whose drafters were also inspired by the Fundamental Principles – and Resolution 58/114.
This common origin in the Movement's Fundamental Principles does not, however, imply that the core principles have the same legal character or normative content for all humanitarian actors. The principles’ legal character varies depending on their source for the actor concerned, and similarly, their normative content also derives from the source of the principles for the actor in question. While in practice the principles’ meanings are largely homogenous, reflecting their common Red Cross and Red Crescent origins, there are some variations, particularly in relation to neutrality. These common origins and largely shared meanings may have contributed, in addition to the principles’ evident value, to the common mischaracterization of them as binding as a matter of international law. The core humanitarian principles simply do not derive from any of the sources of international law: treaties, international custom and general principles of law.
The fact that the core humanitarian principles do not come from international law should not be viewed as undermining them. While they are not derived from international law, the analysis above has demonstrated that, for most actors, the core humanitarian principles are indeed legally binding. For components of the Movement, this is by virtue of its Statutes. NGOs may be bound by internal governance document(s) and/or by any sectoral document that the organization has signed, such as the Code of Conduct. Since most UN humanitarian actors are subsidiary to the General Assembly, the principles are largely binding via its Resolutions 46/182 and 58/114. For States, the source of the commitment to uphold the principles is national and/or regional (e.g. EU) law and/or policy. Additionally, while the Geneva Conventions and their Additional Protocols do not make the principles legally binding for States, at least impartiality is a constitutive element of humanitarian action under IHL. In addition to acting impartially because this is required by the Red Cross Statutes, the Code of Conduct or General Assembly resolutions, humanitarian actors in armed conflict will act impartially because doing so privileges their assistance under IHL.
Once it becomes clear that humanitarian actors in every category are obliged or have strong reasons to comply with humanitarian principles, what may initially appear as constructive ambiguity – let us not challenge the notion that the humanitarian principles are international law, merely because we would like it to be so – becomes akin to confusion. Humanitarian actors should know why they must or should act in accordance with the principles; the incorrect idea that the principles are international law does not advance that end.
Annex 2: The core humanitarian principles – who is bound by what?
Annex 3: Definitions of the core humanitarian principles used in the UN system and State policy
