The admissibility of the exceptional use of armed protection for humanitarian relief operations and personnel under international humanitarian law

Resumen

Abstract Based on a legal standpoint, this research analyses the exceptional use of armed protection for humanitarian relief operations and personnel under extreme circumstances. Often in addition to armed conflicts, acts of violence impede relief personnel from reaching out to persons in critical need of receiving relief assistance unless those relief personnel use armed protection. In general, any involvement of military or armed personnel in humanitarian assistance is incompatible with the legal status of humanitarian relief assistance under International Humanitarian Law (IHL). However, the lack of an explicit provision within IHL in this respect, leads to controversies as there is no unanimity among humanitarian relief organisations. Therefore, the present PhD dissertation intends to identify the specific criteria of legality that could constitute requirements to admit or to exclude this exceptional practice as contrary to IHL. Thus, this study endeavours to clarify and to develop the legal framework applicable to the exceptional use of armed protection for humanitarian relief operations and personnel. This study adopts a policy argument that extends by analogy to humanitarian relief personnel the principle and the policy underlying the provisions of article 13 (2) (b) of the First Additional Protocol of 1977 which acknowledge only to medical personnel the right to use armed protection against acts of violence. Although this article 13 (2) (b) does not apply to humanitarian relief personnel, its underlying principle and policy can at least facilitate determining the specific legal criteria and restrictions that the exceptional use of armed protection has to respect in order to not lose the immunity of humanitarian relief activities and personnel under IHL. Therefore, this policy argument can allow establishing a credible legal basis that identifies the exceptional use of armed protection for humanitarian relief activities and personnel not as a new but as an existing exception under IHL. This being said, humanitarian relief activities and personnel using armed protection may keep a relative immunity based on a case by case approach where parties to the conflict do not contest their legal status. Indeed, the fundamental principles of humanitarian relief assistance remain incompatible with any use of armed protection. Key words: international humanitarian law, armed conflicts, humanitarian relief assistance, humanitarian relief personnel, armed protection, military or armed escort and self-defence.