Published: 03 August 2019 Author: Stefan Talmon
Humanitarian assistance in case of crisis, conflict or disaster is an integral and defining part of German foreign policy. In 2012, the Federal Foreign Office published its first Strategy for Humanitarian Assistance Abroad (the “2012 Strategy”). Since then, the way humanitarian assistance is delivered has changed and developed further – not the least following the World Humanitarian Summit (WHS) held in Istanbul in May 2016. In June 2019, a new Strategy for Humanitarian Assistance Abroad 2019-2023 (the “2019 Strategy”) was issued which sets out the principles guiding Germany’s provision of humanitarian assistance as follows:
“In light of frequent violations of International Humanitarian Law [IHL], an unprecedented number of attacks on humanitarian workers and increasingly restricted humanitarian access, the participants at the 2016 World Humanitarian Summit, including the Federal Government, reaffirmed their commitment to the humanitarian principles and humanitarian law, notably the four Geneva Conventions of 1949 and their Additional Protocols of 1977, which comprise fundamental rules of conduct in armed conflicts.
In 1965, the Red Cross and Red Crescent Movement distilled seven principles on the basis of IHL: Humanity, Impartiality, Neutrality, Independence, Voluntary service, Unity and Universality. The principles of Humanity, Impartiality and Neutrality were recognised in 1991 by UN General Assembly Resolution 46/182 as the basis for global humanitarian assistance. The 2003 General Assembly Resolution 58/114 added the principle of Independence to this canon. […]
The implementation of the Federal Foreign Office’s humanitarian assistance is mindful of three further principles, namely the focus on needs, subsidiarity and doing no harm.”
Germany is thus guided by ten principles when providing humanitarian assistance. These principles are not legal obligations binding upon Germany but rather political commitments forming the framework for its humanitarian action.
The principles of voluntary service, unity and universality did not appear in the 2012 Strategy. In its new Strategy Paper, Germany brings its policy in line with that of the International Red Cross and Red Crescent Movement which has followed these seven fundamental principles since 1965. However, unlike the four core principles of humanity, impartiality, neutrality and independence, the three new principles are not defined in either of the two strategy papers. This is regrettable as the definitions of these principles adopted by the International Red Cross and Red Crescent Movement cannot be transferred one-to-one to individual States. This is demonstrated by the fact that Germany has defined the four core principles in a way that differs from the definitions adopted by the International Red Cross and Red Crescent Movement.
Thus, the principle of humanity is understood as requiring that “human suffering everywhere must be alleviated, with special attention being paid to population groups most at risk. The dignity of every individual must be preserved and protected.”
Impartiality according to the 2019 Strategy Paper requires that humanitarian assistance is provided “solely on the basis of need and without discriminating affected groups or individuals – for example on the basis of age, gender, ethnicity, sexual orientation, language, faith, disability, state of health, political or other opinions, national or social origin.” In line with latest developments in political correctness the term “race” has been replaced in the 2019 Strategy with “ethnicity” and the term “religion” with “faith”. The term “skin colour” has been dropped altogether. The principle of impartiality applies both to the allocation of resources between different crisis contexts and within a specific crisis.
Neutrality means “providing humanitarian assistance without giving preferential treatment to either side in an armed conflict or other controversies.” However, if during an internal armed conflict the government of a State does not provide any assistance to the population in areas under rebel control, needs not met by the government may be prioritised.
Finally, according to the principle of independence, “humanitarian objectives must not be subordinate to political, economic, military or other goals and it must be ensured that the only aim of humanitarian assistance remains preventing or alleviating suffering.”
In addition to the seven humanitarian principles identified by the International Red Cross and Red Crescent Movement, Germany applies three further principles when providing humanitarian assistance, namely the focus on needs, subsidiarity and doing no harm. The Federal Foreign Office explains these three principles as follows:
“Accordingly, the nature and extent of humanitarian needs are a key criterion for providing assistance. Such assistance is granted only where the government of the state concerned or other stakeholders are themselves unable or unwilling to provide the assistance necessary. Humanitarian assistance should meet urgent needs without causing harmful side effects (do no harm), while contributing to the resilience of those affected, strengthening humanitarian partner structures for the future and, where possible, preparing for development cooperation measures. The humanitarian assistance of the Federal Foreign Office is respectful of affected people’s fundamental rights, such as the right to life, physical and mental integrity, personal freedom and freedom of expression. […]
The primacy of needs orientation also includes taking the subsidiarity principle and the role of the government of the affected state seriously. The latter has the primary responsibility for meeting the needs of its population and must therefore play a leading role in assessing needs and coordinating relief efforts. Restrictions may arise if it is not prepared or willing to assess and meet humanitarian needs impartially. Principled humanitarian action can also mean that needs not met by the government are prioritised by international humanitarian partners.”
By applying to humanitarian assistance the controversial “unable or unwilling” test, which some States have applied in the context of self-defence against non-State actors, Germany might seem to call into question the principle of State sovereignty. As emphasized by the UN General Assembly in its resolution 46/118, “the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations” when providing humanitarian assistance. In this context, humanitarian assistance “should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.” During the discussion of the resolution, several States made it clear that assistance could not be given without the approval of the State concerned. The 2005 ASEAN Agreement on Disaster Management and Emergency Response expressly provided that “assistance can only be deployed at the request, and with the consent, of the Requesting Party, or, when offered by another Party or Parties, with the consent of the Receiving Party.”
For Germany, the key concern seems to be not State sovereignty but the humanitarian needs of the population. Humanitarian assistance is people-centred, not State-centred. While the affected State has the “primary role” in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory, it does not have the sole role. There is thus a subsidiary role for other States in providing humanitarian assistance. It is unlikely however, that Germany would claim a right unilaterally to provide humanitarian assistance if the affected State was unable or unwilling to do so. It seems more likely that it would do so only under the authority of a binding Security Council resolution. The law in this area is in a state of flux. In its 2016 Draft Articles on the Protection of Persons in the Event of Disasters, the International Law Commission (ILC) still maintained on the one hand that “the provision of external assistance requires the consent of the affected State”. On the other hand, however, it stated that an affected State’s right to refuse an offer of external assistance is not unlimited. Consent to external assistance may not be withheld “arbitrarily.” Irrespective of whether the latter rule constitutes a codification of existing customary international law or amounts to progressive development of international law, the ILC did not draw the conclusion that, in case consent is withheld arbitrarily, other States may unilaterally provide external assistance, even against the express will of the affected State. This is also not the conclusion Germany would draw. In comments submitted to the ILC in 2015, Germany stated:
“In particular, we share the perception that sovereignty entails the duty of the affected State to ensure within its jurisdiction the protection of persons and the provision of disaster relief. We also concur that although the consent of the affected State shall not be withheld arbitrarily, consent is nevertheless an indispensable requirement for every provision of external assistance.”
Arbitrary refusal to consent to external assistance will incur the international responsibility of the affected State; it does not give other States a right to provide assistance without consent. Any unilateral right to provide humanitarian assistance would raise the questions of who was to determine the seriousness of the situation requiring assistance, the inability or unwillingness of the affected State to provide assistance and whether consent was indeed being refused arbitrarily.
Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from 20 Essex Street, London. He is the editor of GPIL.
Prof. Dr. Stefan Talmon LL.M. M.A