The victims of any armed conflict are entitled to humanitarian assistance. This is implied in customary international humanitarian law as well as Treaty Law. Treaty law is binding on all states; hence all governments are bound to provide humanitarian assistance to victims of armed conflict. Thus victims of the Iraqi conflict will be entitled to humanitarian assistance if stipulations contained in the following Additional protocols to the Geneva Conventions of 12 August 1949 are implemented:-
(a) The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I) (b) The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II); There is also sound legal basis for humanitarian assistance under customary international law.
While the latter is not a written convention as it comprises of practices accepted by all states as standards to be adopted, it assumes significance. Parry and Grant Encyclopedic Dictionary of International Law (2004) indicates that customary international law has two basic components which denotes applicability to the situation of humanitarian assistance in Iraq. The first element is that all states are required to acquiesce to a provision which has been generally accepted as law by a majority of other states.
The second facet is that it should be accepted as a concept prevailing in international law in general. Within both these paradigms it would be evident that humanitarian assistance is to be provided legally to all victims of violence in Iraq. Moreover customary international law is accepted under Article 38(1) of the International Court of Justice and thus has powerful legal sanction. Customary laws may have greater binding to states than the Treaty Law, even though presently all states are signatories to the Geneva Conventions.
Thus all governments which are operating in Iraq including the newly formed Iraqi administration under the Prime Minister Maliki is obliged to undertake humanitarian assistance under customary international law. Sadly, statutory provisions do not necessarily imply implementation. There has to be both political will as well prevalence of appropriate security environment in which such rules can be enforced. The problem in providing humanitarian assistance in Iraq has been that of implementation and extending reach of the provider due to security considerations.
One of the very first acts of violence in Iraq was bombing of the United Nations HQs in Baghdad in 2003. This resulted in the UN withdrawing its staff from the area and thus could not effectively coordinate and monitor humanitarian assistance to the populace. A large number of humanitarian agencies continued to operate in Iraq despite the heavy toll taken by the violence. The primary responsibility for provision of humanitarian assistance rests with the state. However in Iraq the process of state formation is perhaps in its nascence.
Under the circumstances Coalition governments which have undertaken the responsibility of restoring order apart from the international agencies as the United Nations are enjoined to undertake humanitarian assistance. Other international organizations as the International Committee of the Red Cross and the Red Crescent and USAID are also legally permitted to provide humanitarian assistance. Q-C) The Coalition forces are trying to assist the civilian population. What principles do they have to respect? Ans: The Coalition forces in Iraq have to respect the lives and property of the people.
Being the occupying force, there is always the likelihood of resistance to the US. But the US troops in presence in Iraq have to maintain law and order, but have to respect the principles of international human rights, humanitarian laws and customary international law in the fulfillment of their duties. For example, in the maintenance of law and order, the US can detain civilians but only in view of a trial or for imperative security reasons, which have to be determined, and the right of appeal has to be allowed.
This is set forth in Articles 78-135 of the Fourth Geneva Conventions. Basically, all those Conventions and Treaties that the Iraqi government is a party too and those that the Coalition Forces are party too are effective and this needs to be followed in spirit and letter. Providing assistance means giving all possible help to the people without creating a situation where the people feel dissatisfied and turn against the coalition forces. By and large, the failure of the coalition forces to do this has resulted in the disillusionment with the US-led forces.
The Americans can punish locals by introducing legislation for that purpose, but they cannot deport them outside Iraq under the Geneva Conventions. Also the civilian will not loose his civilian status because an outside force with new laws is trying him, states Article 49 (1). Article 53 makes it clear the US forces must respect the rights of property and confiscate it only under extraordinary circumstances and that too under local legislation. Public property is administered by the coalition forces, but only under the rules of usufruct.
There is thus a difficult task in terms of winning the hearts and minds of the Iraqi people combined with the insurgency that is ever present. For an international reconstruction effort to be effective within the ambit of international law, the coalition forces will have to work towards achieving stability in Iraq to a degree where it can fulfill its obligations under both customary law and UN resolutions. The problem is that adhering to the rules of engagement is not so easy. Providing a stable government that looks after the needs of the Iraqi people will go a long way in settling the problem.
What levels of assistance is needed and how it can be optimally given has to be decided in consultation with the Iraqi people or with a local authority that is empowered to take decisions. The respect for the principles of international humanitarian law, human rights laws and customary international law by themselves will set precedents for the gradual but increased involvement of the coalition forces in assisting the rebirth of civil society in Iraq.
Reference: 1. Grant, John P. Craig Barker J. Eds. (2004). Parry and Grant encyclopaedic dictionary of international law. 2nd ed. New York: Oceana Publications