The Applicability of IHL in Mixed Situations of Disaster and Conflict

8/4/2019 The Applicability of IHL in Mixed Situations of Disaster and Conflict

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The Applicability of IHL in Mixed Situations

of Disaster and Conflict

1. Daniela Gavshon*Error! Hyperlink reference not valid. Author Affiliations

1.

*The author of this paper is a teaching assistant at the Geneva Academy of International

Humanitarian Law and Human Rights (ADH) and completed her LLM in InternationalHumanitarian Law at ADH in 2008.

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AbstractThere is an increasing number of natural and human-made disasters. There has also

been increasing attention given to international disaster response laws. In arecently published study, the International Federation of Red Cross and RedCrescent Societies stated that in mixed situations of disaster and conflict,international humanitarian law will prevail with international disaster response lawinstruments varying in their applicability. This paper examines whether in factinternational humanitarian law is sufficient to deal with mixed situations, inparticular, with relief efforts. The author concludes that international humanitarianlaw is useful as a basis, but other areas of law are essential in filling the gaps,particularly international disaster response laws. As such, the author believesemerging international disaster response law instruments should be encouraged tohave a broad scope whereby these instruments include mixed situations too.Previous Section Next Section

1 IntroductionThe increase in the number of disasters in the world1 has unsurprisingly beenaccompanied by increased attention towards helping the victims of thesecatastrophes.2 The laws relating to disaster response are slowly developing but areyet to attain the same level of global acceptance as the laws of armed conflict.3 In amixed situation where a disaster occurs on the territory of a Party to an armedconflict, it has been proclaimed that international humanitarian law (IHL) shall bethe prevailing body of law.4 To a certain degree, this makes sense especially giventhe wide acceptance of IHL. What remains to be examined, however, is whether infact IHL is sufficient to protect and assist these people. It will be shown that

although IHL provides a good basis for the acceptance and delivery of relief, thereare some complications with applying it in mixed situations, particularly when thedisaster is far from, and unrelated to, the armed conflict. Furthermore, the IHLArticles on relief do not address all people. Even if one puts aside these broadissues, IHL does not contain the specificity required for an effective andcomprehensive relief operation. The evolving body of international disasterresponse laws, rules and principles (IDRL) is making significant progress in creatingstandards that can enable the effective and rapid delivery of aid. Such a body of lawmay be a useful complement to IHL in situations where a disaster occurs onterritory where an armed conflict is already taking place.

A. Definition: Disaster

There is no internationally agreed definition of disaster. Generally, internationalinstruments view disaster quite broadly.5 In a study completed in 2007 by theInternational Federation of Red Cross and Red Crescent Societies (IFRC) entitled
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Law and Legal Issues in International Disaster Response: A Desk Study (IFRCStudy), the IFRC included sudden onset events (e.g. earthquakes and particularlyvolatile diseases), slow onset events (e.g. droughts and slow-spreading disease), inboth natural and human-made disasters.6 Like most international instruments, thestudy did not examine events that did not have widespread effects on a society butunlike most of the international instruments, the IFRC Study expressly excludedarmed conflicts from their definition of disaster in the belief that there is already acomprehensive global legal framework of [IHL] which governs humanitarianassistance in armed conflict.7 This paper will adopt the same definition of disaster,however, for additional reasons. In an attempt to separate and analyze theadequacy of IHL in helping victims in mixed situations of disaster and conflict, notcalling the armed conflict and the suffering it causes a disaster enables an easierdiscussion of theoretical scenarios. Therefore, although this paper does not includearmed conflict as a disaster in and of itself, it will include:

1. Disasters worsened by the armed conflict regardless of whether or not theyare in the vicinity of the armed conflict. For example, when a governmentthat is already embroiled in an armed conflict exacerbates the effects of a

flood, or does not respond to the effects of a flood (intentionally or forpolitical reasons relating to the conflict), and as a result, there is a famine onits territory. The worsening would also extend to the less sinister situationwhere a government is weakened by an armed conflict such that when adisaster occurs (or something falling short of one), the government does nothave the capacity to deal with it, making it into an even bigger disaster.

2. Disasters occurring during an armed conflict, but unrelated to it. This canoccur in the region of the armed conflict. For example, a tsunami affectingthe conflict zone as was the case in the province of Aceh in Indonesiafollowing the 2004 Indian Ocean Tsunami. This can also happen when thedisaster is in a region separate from the armed conflict. For example, the

2004 Indian Ocean Tsunami, as well as hitting the region where the non-international armed conflict (NIAC) primarily takes place, also hit other partsof Indonesia.

No body of law is going to be perfect in dealing with relief provisions in mixedsituations of disaster and conflict but perhaps some other bodies of law are betterequipped to deal with such situations, or at the very least, need to be seriouslyconsidered in concert with IHL. Before looking at how any gaps in IHL can be filled, itis useful to identify where the overall gaps are in IHL with respect to disaster reliefin mixed situations.

B. Overview of IHL Relief Provisions

The IHL provisions on relief can be found in the Geneva Convention Relative to theProtection of Civilian Persons in Time of War, 1949 (GCIV) and the ProtocolsAdditional to the Geneva Conventions of 12 August 1949, 1977 (API and APII).Article 23 of GCIV,8 and Article 70 of API9 are general provisions obliging states toallow relief into their territory for civilians. Article 18 in APII, broadly speaking,addresses the right to offer relief services subject to the states consent in an NIAC.10

What follows is a discussion of how these provisions can be interpreted in thecontext of IHL given its geographical and temporal scope when a state that isembroiled in an armed conflict is faced with a disaster occurring on its territory.Previous Section Next Section


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2 Geographical Scope of Application of IHL: Is There a

Requirement for a Nexus to the Conflict?

A. Geographical Scope

In relation to IHL in international armed conflicts (IACs), the International CriminalTribunal for the former Yugoslavia (ICTY) has explained that some provisionssuggest they apply to the whole territory of the Parties to the conflict,11 not simplyto the area surrounding the actual hostilities.12 It further said: Certainly, some of theprovisions are clearly bound up with the hostilities and the geographical scope ofthose provisions should be so limited. Others, particularly those relating to theprotection of prisoners of war and civilians, are not so limited.13

As such, it is questionable whether there is a substantive requirement for the reliefitems in IHL, despite the suggested broad geographical scope of application of IHL,to be used solely for victims whose needs arise as a result of IACs. For example, ifany conflict in which the United States was involved during 2005 was an IAC, andthen if it was reasoned that GCIV protects civilians anywhere in the territory of a

Party to the conflict, the laws of armed conflict would have applied on US territory,which would have meant that any relief provided to the United States in theimmediate aftermath of Hurricane Katrina in August 2005 would have beenprimarily governed by IHLin terms of both the duty to allow it in and the broadobligations relating to its effectiveness. This outcome would be absurd becausefirst, it is hard to imagine that the United States would have accepted that IHLapplied and second in such a situation, other more detailed bodies of law wouldcertainly be more helpful. This is also relevant with respect to NIACs. As with IACs,the ICTY tries to provide insight into the geographical scope of IHL by saying: [T]hefact that beneficiaries of common Article 3 of the Geneva Conventions are thosetaking no active part (or no longer taking active part) in the hostilities indicatesthat the rules contained in Article 3 also apply outside the narrow geographicalcontext of the actual theatre of combat operations.14

Thus, although the protection of civilians is of paramount importance in IHL, it isessential to analyze whether the provisions on relief and protection are as the ICTYsays clearly bound up with the hostilities or to consider whether there is thepossibility of something being too remote, either geographically or in terms of itscause, for IHL to apply in the entire territory of the IAC or NIAC.

B. Is There a Nexus Requirement?

It is useful to assess whether some form of nexus to the armed conflict is requiredfor the relief provisions to apply. That is, are the relief provisions clearly bound upwith the hostilities and, therefore, entailing a geographical (or other) limitation?

Starting with IAC and GCIV, Part II is entitled [g]eneral protection of populationsagainst certain consequences of war (emphasis added). It is clear from a carefulreading of this Part that it only refers to protection related to the consequences ofan armed conflict. This is further supported by Article 13.15 Taking a literal approachto the title and this Article, however, would not necessarily preclude the protection,provided by any Article in this Part, of victims of natural or human-made disastersthat are in fact a consequence of, or worsened by, war. For example, this couldinclude victims of a famine caused or exacerbated by a government or an armedgroup for reasons related to the armed conflict.16

The Commentaries to Article 13 suggest that on the whole, this Part was intended tobe broad in that it covers all civilians (despite Article 23 being more limited).17 Theystate, the object of Article 13: is to bind belligerents to observe certain restrictionsin their conduct of hostilities, by erecting protective barriers to shield certaincategories of the population who, by definition, take no part in the fighting: children,women, old people, the wounded and the sick.18


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Given that the focus as described in the Commentaries was on conduct of hostilitiesand their effects on civilians, it is not unreasonable to include victims of disastersthat have been enhanced by the armed conflict. More specifically related to relief,Article 23 in Part II discusses, amongst other things, medical consignments forcivilians of another High Contracting Party as well as food and clothing for the listedvulnerable groups. It has been argued that no particular cause for the need for reliefexists and so despite Article 13, Article 23 does not refer to any conditionprecedent concerning a lack of supplies19 and in any case, obstacles to obtainingrelief from the effects of a disaster would very arguably qualify as suffering causedby war if they were imposed largely due to the dynamics of the armed conflict.20

This is not an absurd conclusion.Furthermore, Additional Protocol II, in discussing the fundamental guaranteesafforded to persons in NIACs, explicitly includes [a]ll persons who do not take adirect part or who have ceased to take part in hostilities.21 Nonetheless, AdditionalProtocol II on the whole appears to be slightly more restrictive than Common Article3, which, as pointed out above, the ICTY shows is quite broad in terms of itsgeographical reach. Article 2(1) of APII provides that [t]his Protocol shall be applied

to all persons affected by an armed conflict as defined in Article 1 (emphasisadded). It is therefore uncontroversial that in the event of a disaster exacerbated byan NIAC, the relevant provisions of IHL would apply. Even if the disaster was notworsened by the conflict but was in the territory of the conflict, one could make thesame argument that was made in relation to IACs above and claim that the AP IIprovisions (certainly Article 18(2)) would still apply as the victims of the disaster arelikely to also be persons affected by the armed conflict.Looking first at IACs, if one accepted the former argument, that the inability toreceive relief is a result of the conflict (even if the initial cause is not) that therebycreates a nexus, then it is not contentious to apply Article 23. Although notimpossible, it is harder to see how Part II would cover the protection of civilians whohave been victims, or may be victims, of a disaster that is completely unrelated to

the conflict, particularly if it is in a different part of the territory from where theconflict is taking place.22 The complication arises where the inability to receive reliefhas nothing to do with the conflict and, besides, it is impossible to even assess whatnothing to do with the conflict actually means. For example, if relief to disastervictims is blocked because, aside from the IAC, the government is preventing therelief going through because of an internal disturbance that has blocked roads andthe internal disturbance objectively is not an NIAC and has nothing to do with oneit would be hard to say that this is suffering caused by war. It is more likely to besuffering caused by an uncooperative government or minor disruptions in thestate. This is arguably the point where human rights obligations would be moreappropriate than IHL.23 In a different hypothetical situation, a problem would arise if

the relief is blocked because of the disaster itself; for example, if the disaster is aflood, but the flood has made the roads impassable, the inability to receive reliefand the need for the relief has nothing to do with the armed conflict at all. In thiscase the obstacle to relief is completely unrelated to the war and so cannot beclassified as suffering caused by war. Alternatively, one could argue that thereason the roads are not passable is because the government is using its resourcesto fight the war instead of urgently fixing the road and creating a path for aid. Allthese hypothetical arguments and scenarios complicate matters, but the point hereis to highlight that from a technical IHL standpoint, the issue can be more complexthan simply stating that Article 23 applies to all situations of disaster on theterritory of an armed conflict.

The problem of having a nexus to the armed conflict in own territory is overcome by

Article 70 of Additional Protocol I (or referred to as API),24 which is considered to becustomary international law.25 Article 70 of API does not have the same contextualissues as Article 23 of GCIV as it sits within a part entitled Civilian Population26 and


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mentioned, an NIAC was taking place in Indonesia in Aceh, an area that wasparticularly badly hit by the tsunami. As we have seen, technically this would havemade IHL the applicable law to all relief assistance (or at the very least the relief tothe areas that were affected by both the tsunami and the armed conflict). Instead,when the IFRC discusses and analyzes the relief provided, it simply says that in suchsituations questions are raised regarding the applicable rules and that many of thesame access barriers and quality issues exist in both disasters and mixedsituations.32 It notes that the security threats are obviously higher in mixedsituations.33 Nonetheless, in all the discussion on the relief effort in Aceh, the IFRCnever mentions any IHL obligations regarding relief.34 Furthermore, although theICRC was already acting in Indonesia and continued to act, the relief operation doesnot appear to have been based on or linked to rules of IHL in any significant way.Instead, the justification for the ICRC taking a lead role in some instances, or inacting at all, was simply because it was an area where it [i.e. the ICRC] had astrong presence before the catastrophe.35 This suggests that although IHLtheoretically applies, it is not relied upon.Previous Section Next Section

3 Temporal Scope of IHL and the Impact of This on Relief

Provisions in Mixed Situations

A. Temporal Scope

The temporal scope of application of IHL does not for the most part create anyparticular problems for relief in disasters occurring in own territory during an IAC. InArticle 6 of GCIV and Article 3(b) of API, the words general close of militaryoperations are used in reference to the temporal scope of IHL. The lack of clarity inthese words impacts upon the applicability of IHL more generally, not just the topicunder discussion. With regard to applying the relief Articles of IHL in a mixed

situation of disaster and conflict, this ambiguity is not a major issue as there arelaws developing and laws in existence that would cover disasters in post-conflictsituations.36

B. The Boundary between Relief and Rehabilitation

There is, however, a difference in the temporal scope of application in GCIVcompared with API in occupied territory. This is relevant for the purposes of thispaper insofar as it may extend the scope of the Occupying Powers duties in relationto disaster assistance. This is particularly the case given that Article 6(3) of GCIVstates that the Occupying Power will be bound by certain provisions (includingArticles 59 and 61, which relate to relief operations) so long as the occupationcontinues and the Occupying Power is exercizing the functions of the government.Depending on how occupation is defined may impact the responsibilities of theOccupying Power, and how long they are expected to help victims of an unrelateddisaster.Article 43 of the Hague Regulations provides the basic standard by which theOccupying Power must comply with respect to the civilians in the occupied territory.It states that: [t]he authority of the legitimate power having in fact passed into thehands of the occupant, the latter shall take all the measures in his power to restore,and ensure, as far as possible, public order and safety, while respecting, unlessabsolutely prevented, the laws in force in the country.

The words public order and safety37 here have been understood to include welfareas well as security. Making an analogy then to helping the civilian population in the

event of a disaster, even if unrelated to the conflict, the responsibility of theOccupying Power to provide or allow relief is apparent. There are, nevertheless,caveats such as the words as far as possible, but despite this, one can see that thebasic obligations of the Occupying Power are quite expansive. One could even


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argue that pursuant to Article 43 of the Hague Regulations, an Occupying Power isresponsible for disaster mitigation (again, even if unrelated to the conflict itself) inan Occupied Territory as this would go some way to ensuring public order and thewelfare of civilians. This is obviously a very expansive interpretation of the duties ofan Occupying Power, but in light of the wording in the relevant Articles, not anoutrageous interpretation.Furthermore, the relief provisions in the Geneva Conventions and AdditionalProtocol I are not inconsistent with the idea that the Occupying Power is responsiblebeyond the actual effects of hostilities. However, the problem here is also assessinghow far beyond relief such welfare must be ensured if there is a disaster. Thereare Articles in GCIV that relate specifically to the Occupying Power agreeing to reliefschemes,38 but as expressly stated in Article 60 GCIV, [r]elief consignments shall inno way relieve the Occupying Power of any of its responsibilities. Suchresponsibilities include ensuring the food and medical supplies of the populationand bringing in whatever is necessary in the event that the resources of theoccupied territory are inadequate.39 Interestingly, Article 60 is not mentioned inArticle 6(3) of GCIV and so will not extend beyond one year after the general close

of military operations. Article 69 of API goes further, stating that the OccupyingPower shall also ensure the provision of clothing, bedding, means of shelter, othersupplies essential to the survival of the civilian population of the occupiedterritory.40 As discussed, there is no apparent requirement that there is a nexus tothe armed conflict. Given this, if there is a disaster in an Occupied Territory, it isunclear to what extent the Occupying Power must ensure the food and medicalsupplies and shelter for the population. There is no way to definitively measureinadequate nor to assess for how long this duty extends. For example, if one takesthe GCIV definition of the end of occupation, if there is an earthquake in anoccupied territory within six months of the general close of military operations, onecould argue that the Occupying Power is then responsible for ensuring the food andshelter of the civilians in the occupied territory. As a corollary, the same could then

apply to disaster mitigation pursuant to Article 43 of the Hague Regulations. And, ifthe occupation continues after providing initial relief (either by the Occupying Poweritself or by letting in relief agencies), the Occupying Power could arguably then berequired to continue to ensure the welfare of the population by providing post-disaster relief and development assistance. IHL is not ordinarily concerned withrehabilitation; however, perhaps following the provisions on the duties of anOccupying Power, it must be concerned with this in some circumstances. It is hardto see where the boundary of an Occupying Power's duty would lie in the event of adisaster, and, all such assistance is tempered by phrases such as to the fullestextent of the means available and as far as possible. In light of this, whilegenerally speaking, IHL is applicable from a temporal perspective to disasters in

occupied territory, the boundaries of what exactly is required and for how long, areblurred, thus making other bodies of law possibly more useful to rely upon in suchsituations.Common Article 3 does not say anything about the temporal scope of IHL in NIACs,and Additional Protocol II does not add much with regard to the Articles on relief.However, in NIACs, the issue of rehabilitation mentioned above with respect toOccupied Territories is also relevant. This is not something with which IHL isprimarily concerned, yet, in a situation where a disaster occurs in a separate part ofthe territory of a state affected by an NIAC, if the state does not question theapplicability of IHL, and in particular Article 18 (despite any query as to whether thedisaster victims are affected by the armed conflict) and thereby allows relief actionsto those affected by the disaster, then it is not obvious what obligations it has after

this. IHL may still apply from a geographical, temporal and substantive perspective,but there are no clear boundaries between where relief work ends and it becomesrehabilitation.41 In which case, even if technically IHL is still applicable, the point at


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which it gives way to other areas of law to set the standards of assistance isuncertain. This problem could also exist in the case of an IAC, where the disasteraffects a completely different region from that of the armed conflict. Addressingdisasters in a conflict with a development style approach could compromisefundamental principles of IHL, namely, neutrality and impartiality, and furthermore,those providing such assistance would not, like all relief workers, have any specialprotection of IHL beyond that of civilians.42 It also runs the risk of exacerbatingalready existing issues with humanitarian relief in conflicts.43

In spite of these and other problems, one cannot say that the negative effects of aidin an armed conflict necessarily outweigh the positive. Neither effect is consistentlyeasy to quantify.44 And so, the intention here is not to warn against emergencyrelief aid or rehabilitation assistance for disasters in a conflict, but rather toelucidate the complexity surrounding when and how IHL should apply to the wholeterritory. This is clearly something that IHL is not equipped to deal with alone.Previous Section Next Section

4 Subjects of IHL and Any Consequent Limitations

A. Combatants

In IHL of IACs the distinction between combatants and civilians may have an impactupon disaster assistance. Looking at a situation where there is an earthquake in theregion where an armed conflict is taking place and both civilians and combatantsare injured, one queries whether the Party on whose territory this occurred isobliged to provide humanitarian assistance to the opposing armed forces. The ruleson humanitarian assistance all appear in either GCIV or the Additional Protocols, andthey only apply to the civilian population. While a Party to the conflict has theobligation to treat humanely and care for those injured members of the armedforces within their power,45 a problem may arise if the injured armed forces are ontheir territory, but not within their power, that is they are not prisoners of war or in

any way captured by the Party. It could be argued that the Party is obliged toprovide free passage to the enemy forces. Surely this somewhat contradicts theaim of weakening the enemy forces. In fact, Article 23 of GCIV states that the freepassage of consignments is subject to them not providing any advantage to theenemy's military efforts. It is hard to envisage how a party would then be under anobligation to provide relief to the enemy's armed forces. But then, a state coulddeny aid to a region of its territory where there are enemy combatants for fear of itgoing to them instead of civilians, by using the justification that such aid wouldprovide an advantage to the enemy's military efforts. In contrast, it is difficult to seehow one Party can ignore their ability to assist potentially sick combatants of theenemy forces, or at the very least how they could use the distinction between their

obligations to these different groups to justify denying aid to either. Arguably,certainly from a combatant's perspective (and perhaps a civilian in the situation likethe one just hypothesized), having recourse to other more general laws onhumanitarian assistance in disasters or to international human rights law would bepreferable, although in reality it is questionable whether any attempts by theenemy to receive aid would be effective.

B. Protected Persons

The division within IHL of IACs into those who are protected and those who are not,providing more protection for people falling within the protected personsclassification may not be helpful in the event of a disaster in the territory of anarmed conflict. If a victim of the disaster in the conflict zone is not a protected

person, then it is difficult to assert on a strict reading that certain relief provisionswill be applicable to them.46 While this does not mean they cannot receive relief, astate's own nationals arguably cannot use certain Articles to enforce relief. Looking


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in both disasters and conflicts. However, there are also strong reasons to takedistinct steps toward this goal in the two contexts, because of both their differingdynamics and the specific requirements of international humanitarian law.49

This paper does not seek to disprove this point, although it is questionable whethertwo distinct steps are necessary required. Nonetheless, what follows is a brief lookat only some of the many areas where IDRL may be able to assist with the lack ofspecificity in IHL.

(i) Initiation

Some of the practical difficulties that have been highlighted in both armed conflictand disaster scenarios are initiation. In both disasters and armed conflicts, therelevant domestic authorities sometimes refuse to call for or allow internationalrelief.50 There can also be issues with needs assessmentsconflicting ones,coordination, their varying quality and with decisions as to when to terminate arelief operation or to transition into a recovery one.51 These are problems that willalso come up in mixed situations and IHL provides no guidance on how to addressthem. There have been suggestions regarding the establishment of a process for

the initiation of recovery assistance and for its termination in pure disastersettings.52 Despite not being encouraged to do so,53 there is no reason why a statecould not implement the standards suggested and make them applicable to all reliefefforts, regardless of whether or not the need arises from a pure disaster or adisaster occurring in an armed conflict. Furthermore, one of the recommendationsfor governments in the IFRC report is that they examine whether existing laws andpolicies set out procedures for undertaking and evaluating rapid needsassessments.54 This should be a recommendation that is encouraged for alldisasters. Of course, it could pose a challenge for a government to undertake itsown needs assessment while being involved in an armed conflict. Consequently, therecommendation to consider permitting early multi-stakeholder needs assessmentsconducted by international organizations55 would be even more useful in mixed

situations as IHL simply refers to relief actions, but not specifically to needsassessments.

(ii) Entry of goods and equipment

Another significant practical issue is the entry of goods and equipment. There canoften be delays and also extensive customs and tax procedures and charges.56 TheGeneva Conventions address this broadly,57 which is helpful; however, they provideno detail. Having specific regulations detailing how to enact the basic IHL ruleswould certainly be a useful tool on which to draw. Recipient states experiencedissatisfaction when, for example, expired medicines, or goods that are unsuitablefor the recipient country's population, are brought into the country.58 There arerecommendations in the IFRC Study that would be useful for the entry of reliefgoods in mixed situations that would address the concerns of both the senders andthe recipients. One recommendation is to: [d]evelop specific rules or guidelines inadvance of a disaster for the entry of food assistance, telecommunications and ITequipment, vehicle, medications and medical equipment, rescue dogs, and foreigncurrency making use of existing international guidelines and appropriatelybalancing health, public order and national security concerns with humanitarianneeds.59

These are certainly useful issues to consider, and if properly thought out, withguidelines made for mixed situations keeping IHL in mind, perhaps the issuessurrounding inappropriate aid could be alleviated or at least minimized.

(iii) Personnel

Some of the issues with personnel relate to their visas and work permits, and therecognition of their professional qualifications. Restricted entry and travel within astate involved in an armed conflict is common for security reasons and heightened


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government sensibility to the presence of international actors.60 Delays on entryand refusal to issue visas can also be a problem in disasters.61 As such, there hasbeen the suggestion that provisions be created to expedite visa processes and theprocedures for recognizing foreign qualifications.62 The IFRC also recommends thedevelopment and strengthening of national law in this area.63 Again, other than theprovisions on unimpeded access,64 there is no detail in IHL on visas and foreignqualifications. In addition, there may be some need to differentiate between doctorseducated in places with differing health standards and training. Even where there isan emergency, the medical response must still be appropriate and effective. Finally,it is noteworthy that even when formal agreements are in place with states involvedin an armed conflict, the procedures to obtain visas and renew them can becumbersome.65 Given the complexity of this issue, there appears no reason whyagain any developing standards in IDRL agreements or national legislation cannotbe encouraged to apply to disasters in armed conflicts too, provided they seriouslytake into consideration IHL and security issues.

Therefore after seeing the value of IDRL, it is certainly not suggested that IHLshould be disregarded altogether, but rather it is clear that IHL and IDRL (and other

bodies of law) can be very complementary.

C. IDRL and IHL

On looking at the IFRC Study, and on examining the potential gaps in IHL, it is hardto ignore the utility and importance of this body of law for all types of disaster,those that are human-made, those that are natural and those occurring both in andout of conflicts. The IFRC Study has stated that disasters do not include armedconflicts. In a situation of armed conflict where IHL applies, relief operationsundertaken to cater to needs generated by an intervening disaster would still begoverned by IHL and its particular requirements to allow and facilitate aid.66

The IFRC has said that IDRL may apply in some instances to mixed situations, thatis, where a disaster and armed conflict occur simultaneously. The extent, however,

to which IDRL instruments should or would apply is unclear.67 The IFRC Study thengoes on to explain that some instruments are clearly meant to apply in allsituations, but for others it is uncertain.68 Nonetheless, the IFRC says IHL is lexspecialis, and so it will prevail over any provisions that may be in conflict with it.69

This is slightly more nuanced than an earlier statement in the report where the IFRCsaid when natural disasters coincide with a situation of armed conflict , IHL willapply and prevail over other types of law as a matter oflex specialis.70 It is worthnoting at this point that this description oflex specialis is not entirely accurate. Oneentire body of law is not lex specialis to another, but rather, when there is a conflictbetween two specific rules on a particular issue, the more specialized one will takeprecedence.71 It can do this in one of two ways, either by providing a more

specialized explanation of a general rule or by being an exception to a general rulethereby modifying or overruling it.72 Simply because an armed conflict is occurringdoes not automatically mean that IHL will always be the lex specalis. Therefore, in asituation where, for example, IDRL is more detailed, it may be lex specialis in that itexpands on an existing general rule of IHL.

The IFRC Study concludes its section on mixed situations of conflict and disaster byrecommending that the Articles being developed by the International LawCommission on the Effects of Armed Conflicts on Treaties73 be looked at in thefuture for determining the applicability of IDRL treaties to armed conflicts. Butarguably, as has been shown in this paper, while IHL can be extremely useful forensuring relief for victims of disasters in armed conflict, it will also often beinsufficient for dealing with these situations and so more is needed than simply

seeing whether IDRL treaties are applicable. There should be encouragementthatfuture treaties, guidelines and procedures be applicable to disasters in armedconflicts too. Of course this still means taking into account conflict-specific concerns


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like heightened security threats and giving deference to IHL in any situations wherethe rules are inconsistent or irreconcilable.Following on from this idea, it is disappointing to see that the November 2007 IDRLGuidelines, which were unanimously adopted at the International Conference of theRed Cross and Red Crescent74 and the adoption of which was the primaryrecommendation of the IFRC Study, specifically state that they do not apply tosituations of disasters occurring in an armed conflict and are not intended to implyany changes to the rules that govern relief in those situations.75 Of course theGuidelines cannot make any changes to IHL or the other bodies of international lawlisted, namely, human rights law and refugee law. Nonetheless, there is no clearreason why they should not apply in the context of a disaster occurring in an armedconflict, provided they are complementary, or at least not antithetical to IHL. TheAnnotations to the Draft IDRL Guidelines, which were not proposed for officialadoption, explain that IHL draws a direct, unambiguous and nearly unconditionallink between persons in need and international humanitarian actors.76 However,nearly unconditional may not be enough for some victims of disasters in armedconflict, as has been shown, IHL does not provide unqualified relief for all victims.

Certainly it is agreed that any development in IDRL should not impinge on IHL, butthere should be no problem with enhancing the effectiveness of the IHL provisionson relief and assistance by providing more practical detail for them. Clearly, as theAnnotations note, disaster settings are politically and operationally different fromarmed conflicts,77 but this difference does not render the Guidelines irrelevant inmixed situations, rather it requires that their application be considered and adaptedas the context requires. This is something the Guidelines themselves address to acertain extent when they state that they are subject to the interests of nationalsecurity and public order.78 Furthermore, there is nothing in the Guidelines thatdirectly contravenes IHL standards. Arguably, even if there were more noteworthyor significant differences,79 there is no reason why the Guidelines cannot simplystate that in the event of conflicting provisions for a mixed situation of disaster and

conflict, IHL will take precedence.It is understandable from an institutional perspective why the IFRC is not promotingor encouraging the applicability of IDRL in mixed situations. Pursuant to theStatutes of the International Red Cross and Red Crescent Movement, armedconflicts and the issues arising therewith are the domain of the ICRC.80 The SevilleAgreement further states that the ICRC shall be the lead agency81 in armed conflictconcomitant with natural or technological disasters.82 However, only the fact thatICRC is the lead agency, does not imply that IHL is solely sufficient to deal withhumanitarian assistance in these situations and nor does it mean that IDRL shouldnot be encouraged to apply in such instances. Referring back to the example of theIDRL Guidelines, it is clear that if the value of IDRL is not promoted in mixed

situations too (in spite of any institutional crossover), then these situations riskbecoming increasingly excluded from guidelines and treaties and in turn may fail tobenefit from the developments and progress in this field of law. This is a greatshame given that in reality, as was seen in the Aceh example in Section 2.2.1, IHL isoften not actually relied upon despite its being theoretically applicable.Previous Section Next Section

6 ConclusionThis paper has examined the applicability of IHL in mixed situations of disaster andconflict. It has shown that while IHL is a useful basis for relief operations it is notwithout problems. There are queries whether in some instances there must be anexus between the conflict and the need for relief; and there is uncertainty as tohow far the duty to provide relief extends. Furthermore, IHL provisions on relief arenot directed at all persons. Nonetheless, IHL is very useful in that it provides generalprinciples for humanitarian assistance and for the most part, it is customary


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9 1. If the civilian population of any territory under the control of a Party tothe conflict, other than occupied territory, is not adequately provided with thesupplies mentioned in Article 69, relief actions which are humanitarian andimpartial in character and conducted without any adverse distinction shall beundertaken, subject to the agreement of the Parties concerned in such reliefactions. Offers of such relief shall not be regarded as interference in thearmed conflict or as unfriendly acts. In the distribution of relief consignments,priority shall be given to those persons, such as children, expectant mothers,maternity cases and nursing mothers, who, under the Fourth Convention orunder this Protocol, are to be accorded privileged treatment or specialprotection.2. The Parties to the conflict and each High Contracting Party shall allow andfacilitate rapid and unimpeded passage of all relief consignments, equipmentand personnel provided in accordance with this Section, even if suchassistance is destined for the civilian population of the adverse Party.3. The Parties to the conflict and each High Contracting Party, which allow thepassage of relief consignments, equipment and personnel in accordance with

paragraph 2:(a) shall have the right to prescribe the technical arrangements, includingsearch, under which such passage is permitted;(b) may make such permission conditional on the distribution of thisassistance being made under the local supervision of a Protecting Power;(c) shall, in no way whatsoever, divert relief consignments from the purposefor which they are intended nor delay their forwarding, except in cases ofurgent necessity in the interest of the civilian population concerned.4. The Parties to the conflict shall protect relief consignments and facilitatetheir rapid distribution.5. The Parties to the conflict and each High Contracting Party concerned shallencourage and facilitate effective international coordination of the relief

actions referred to in paragraph 1. 10 1. Relief societies located in the territory of the High Contracting Party,

such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offertheir services for the performance of their traditional functions in relation tothe victims of the armed conflict. The civilian population may, even on itsown initiative, offer to collect and care for the wounded, sick andshipwrecked.2. If the civilian population is suffering undue hardship owing to a lack of thesupplies essential for its survival, such as foodstuffs and medical supplies,relief actions for the civilian population which are of an exclusivelyhumanitarian and impartial nature and which are conducted without any

adverse distinction shall be undertaken subject to the consent of the HighContracting Party concerned.

11 Article 6(2) of GCIV makes reference to the territory of Parties to theconflict without any further distinction regarding territory.

12 Prosecutor v Dusko Tadi a/k/a DULE, International Criminal Tribunal forthe former Yugoslavia (Jurisdiction), Case no.: IT-941-AR72, AppealsChamber, 2 October 1995, (Prosecutor v Dusko TadiAC) at para. 68.

13 Ibid. 14 Ibid., para. 69. 15 Article 13 states: The provisions of Part II cover the whole of the

populations of the countries in conflict, without any adverse distinction

based, in particular, on race, nationality, religion or political opinion, and areintended to alleviate the sufferings caused by war (emphasis added). 16 Although, on a practical level, it is hard to see how a government that is

enhancing the effects of a famine would then agree to allow relief in for the


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victims, as required by Article 23 GCIV and Article 70 API. Nonetheless, thisissue does not affect the applicability of IHL, but rather whether it would becomplied with.

17 Article 23 refers to children under fifteen, expectant mothers andmaternity cases.

18 Jean Pictet (ed.), IV Geneva Convention Relative to the Protection ofCivilian Persons in Time of War, International Committee of the Red Cross,Geneva 1960, (Commentaries), 118.

19 D. Fisher Domestic Regulation of International Humanitarian Relief inDisasters and Armed Conflict: A Comparative Analysis (2007) 89(866)International Review of the Red Cross p. 368 in fn. 154.

20 Ibid. 21 AP II, Article 4(1).

22 The extent to which a disaster can be deemed truly and entirelyunrelated to the armed conflict will be discussed in the following paragraph.

23 A discussion of this is beyond the scope of this paper.

24 API of 8 June 1977. 25 International Committee of the Red Cross, Customary International

Humanitarian Law (3 vols) (2005), vol. I: Rules (CIHL Study) CIHL Rule 55.

26 Additional Protocol, Part IV.

27 Additional Protocol, Part IV, Section II.

28 Which is considered customary international law as per the CIHL Study,Rule 55.

29 L. Zegveld, Remedies for Victims of Violations of InternationalHumanitarian Law (2003) 85(851) International Review of the Red Cross 501.

30 The definition used in the previous paragraph is useful; however, itprovides no tangible limits. It still does not define the terms suffering andaffected.

31 IFRC Study, p. 157

32 Ibid., p. 156. 33 Ibid., p. 156.

34 See, e.g. IFRC, Legal Issues from the International Response to theTsunami in Indonesia (2006) available at (accessed 15 July2008).

35 ICRC News release, Asian Earthquake and Tsunamis 30 December 2004available at .

36 See IFRC Study.

37 Interestingly, the original French version simply uses the phrase lordreet la vie publics (i.e. public order and life) but for some unexplained reason,the English translation has included the word safety.

38 GC IV, Article 59.

39 GC IV, Article 55.

40 It is unclear whether this provision is customary international law as itdoes not expressly appear in the CIHL Study; however, it would certainly beapplicable to those States that are a party to API.

41 IFRC Study, p. 24.

42 Pursuant to Chapters III and IV of the Geneva Convention for theAmelioration of the Condition of the Wounded and Sick in Armed Forces in theField of 12 August 1949 (GCI) medical professionals and some other groupsof people, if satisfying the enumerated conditions, are specially protected byIHL. Those engaged in development or rehabilitation work (or even relief work
http://www.ifrc.org/Docs/pubs/idrl/indonesia-cs.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/686jfu?opendocumenthttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/686jfu?opendocumenthttp://www.ifrc.org/Docs/pubs/idrl/indonesia-cs.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/686jfu?opendocumenthttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/686jfu?opendocument


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if they are not in one of the categories listed) do not come under this specificprotection.

43 Several commentators are now saying that developmental-relief isprobably politically inappropriate in most protracted war and runs the risk ofcapacity-building rival warring parties rather than sustaining sufferingpopulations. Joanna Macrae et al. Conflict, the Continuum and ChronicEmergencies (1997) 21(3) Disasters in Hugo Slim, InternationalHumanitarianism's Engagement with Civil War in the 1990s: A Glance atEvolving Practice and TheoryA Briefing Paper for ActionAid UK19 December1997, available at http://jha.ac/articles/a033.htm (accessed 16 June 2008).

44 Ibid. 45 For examples, see GC I, Article 12.

46 For example, Article 30 GCIV

47 A discussion of this is beyond the scope of this paper.


49 Fisher, n. 19, pp. 346347.

50 Ibid., p. 355. 51 IFRC Study, pp. 9395. The latter issue was discussed earlier.

52 30th International Conference of the Red Cross and Red Crescent,Resolution 4 Adoption of the Guidelines for the Domestic Facilitation andRegulation of International Disaster Relief and Initial Recovery Assistance30IC/07/R4 November 2007 (IDRL Guidelines), Part III, 10 and 12.

53 This is not to say states are encouraged notto include mixed situations,but rather that they are not encourage to include them. See discussion inSection 5.3.


55 Ibid.

56 Ibid., Chapter 10. 57 GC IV, Articles 23, 59 and 61.

58 K. Beeckman, Guidelines for the Domestic Framework of InternationalDisaster Relief and Initial Recovery Assistance (2007) 26(4) Refugee SurveyQuarterly208.


60 Fisher, n. 19, p. 356.

61 Ibid., p. 357. 62 IDRL Guidelines, Part V, Section 16.


64 Article 71(3) of API states Each Party in receipt of relief consignments

shall, to the fullest extent practicable, assist the relief personnel in carryingout their relief mission. Only in case of imperative military necessity may theactivities of the relief personnel be limited or their movements temporarilyrestricted.

65 For examples, see Fisher, n. 14, p. 356.


67 Ibid., p. 157.

68 Ibid., p. 157. 69 Ibid., p. 157. 70 Ibid., p. 36. 71 M. Koskenniemi, Study in the Function and the Scope of the Lex

Specialis Rule and the Question of Self-Contained Regimes, UN doc.ILC(LVI)/SG/FIL/CRD.1, 2004, paras 6181 and Heike Krieger, A Conflict ofNorms: The Relationship between Humanitarian Law and Human Rights Law


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in the ICRC Customary Law Study (2006) 11Journal of Conflict and SecurityLaw 269.

72 Ibid.


74 IDRL Guidelines November 2007, para. 2.

75 Ibid., Section 1(4).

76 Annotations to the Draft Guidelines for the Domestic Facilitation andRegulation of International Disaster Relief and Initial Recovery Assistance,IFRC, Version of 26 October 2007, at Section 6, available at (accessed 18

July 2008).

77 Ibid., Section 6. 78 IDRL Guidelines, Part V.

79 For example, if one was to argue the role of the affected State wasdifferent in a disaster compared to in an armed conflict.

80 Article 5 of The Agreement on the Organisation of the International

Activities on the Components of the international Red Cross and Red CrescentMovement known as the Seville Agreement, and Article 5 of Statute of theInternational Red Cross and Red Crescent Movement (adopted by the 25thInternational Conference of the Red Cross at Geneva in 1986, amended in1995 and 2006 through Resolution 7 of the 26th International Conference ofthe Red Cross and Red Crescent at Geneva and Resolution 1 of the 29thInternational Conference of the Red Cross and Red Crescent at Geneva,respectively).

81 The concept of lead agency is explained in Article 4 of the SevilleAgreement.

82 Seville Agreement, Article 5.3.1.
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The Applicability of IHL in Mixed Situations of Disaster and Conflict

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