1 septembre 2014

OUVRAGE : C. Barrat, Status of NGOs in International Humanitarian Law

Marc GALVIN

In Status of NGOs in International Humanitarian Law, Claudie Barrat examines the legal framework applicable to NGOs in situations of armed conflict. The author convincingly demonstrates, contrary to convention, that in addition to the ICRC, the National Societies and the IFRC, numerous other NGOs referenced in humanitarian law treaties have a legal status in IHL and therefore legitimate claim to employ IHL provisions to respond to current challenges. On the basis of clear and thorough definitions of these entities, Barrat argues that existing NGOs meeting stringent definition can benefit from customary rights and obligations in both international and non-international armed conflict.


TABLE OF CONTENTS

INTRODUCTION

1. DEFINITIONS AND SCOPE OF THE RESEARCH
1.1 NGOS
1.2. IHL as the applicable law in times of armed conflicts
1.3. International and non-international armed conflicts
1.4. Definitions and methodology to determine customary law 

2. THE RED CROSS AND RED CRESCENT MOVEMENT: A POSITION AFFIRMED IN INTERNATIONAL HUMANITARIAN LAW TREATIES
2.1. The ICRC
2.2. The Federation of Red Cross and Red Crescent Societies
2.3. The national societies of the Red Cross and Red Crescent 

3. THE REFERENCE TO 13 OTHER ORGANISATIONS IN IHL TREATIES: A BASIS FOR NGOS
3.1. Volunteer/voluntary aid societies
3.2. Civil defence organisations
3.3. Civilian relief/medical personnel
3.4. The civilian religious personnel
3.5. Substitutes of the protecting powers
3.6. Impartial humanitarian bodies/organisations
3.7. Organisations giving assistance to prisoners of wars
3.8. Relief societies
3.9. International religious organisations
3.10. Organisations duly approved by the parties to the conflict
3.11. Social or cooperative organisations
3.12. Organisations engaged in the task of reuniting families
3.13. Organisations assisting the protected persons 

4. THE LEGAL PERSONALITY OF NGOS IN INTERNATIONAL HUMANITARIAN LAW: IS THAT THE QUESTION?
4.1 The concept of international legal personality
4.2 Recognition of existing NGOS as organisations cited in IHL treaties
4.3. The carrots: can NGOS benefit from direct rights in international humanitarian law?
4.4 The sticks: with power comes responsibility 

5. CUSTOMARY RIGHTS OF NGOS IN INTERNATIONAL HUMANITARIAN LAW
5.1. A customary right to offer services (right of initiative)
5.2. A customary right to have access to protected persons
5.3. A customary right to provide relief to protected persons
5.4. A general customary right to be respected and protected 

6. CONCLUSION 

BIBLIOGRAPHY 

INDEX


Claudie BARRAT, Status of NGOs in International Humanitarian Law, Leiden, Brill/Martinus Nijhoff, 2014 (386 pp.)

Claudie Barrat has a PhD in International Relations/Public International Law from the Graduate Institute of International and Development Studies (2009). She is currently working as a Policy Officer for the United Nations High Commissioner for Refugees in Geneva, Switzerland. Previously, she worked for United Nations organisations in Egypt, the Democratic Republic of Congo and the Palestinian Territory.


INTERVIEW WITH THE AUTHOR

1) What is the originality of the book in relation to other works?

There are a few books on the status of NGOs currently on the market, but none of those examine the status of NGOs in International Humanitarian Law. The academic literature to date has either examined the status and role of NGOs in human rights law, in international law in general, or it has examined their role in conflict and peacekeeping situations from a political science context. When legal scholars refer to the status of NGOs in International Humanitarian Law, the ICRC is systematically cited, but no other NGOs are mentioned. Some authors even negate any reference to humanitarian agencies in International Humanitarian Law treaties. This book would therefore fill a gap in the existing literature.

2) Drilling down, can you bring any extra clarification to one of the key concepts developed?

This book examines the legal framework applicable to NGOs in armed conflicts situations. It proves that sixteen entities mentioned in International Humanitarian Law treaties are NGOs. These include for example the “impartial humanitarian organisations,” “religious organisations,” “relief societies,” and “organisations giving assistance to the prisoners of war.” The book defines each of these organisations and argues that existing NGOs – such as Médecins sans Frontières - fit the definition of these organisations. It therefore grants a legal status to NGOs in International Humanitarian Law.

3) What new light does your book shed on current events?

The book proves that NGOs can find a basis for their activities in International Humanitarian Law treaties. NGOs are operating in an increasing difficult environment and struggle to carve out a secure space in which to operate. To address these challenges, they have developed new strategies that included codes of conduct signed with belligerents, emphasising the protection granted to them by emblems, exchange of best practices and increased advocacy through the use of new concepts such as “humanitarian space”. But the book demonstrates that the legal framework applicable to NGOs in armed conflict situations is to be found in the 1949 Geneva Conventions and 1977 Additional Protocols. Humanitarian actors as well as practioners should therefore use these treaties in their advocacy efforts with governments and rebel groups.


FOREWORD

Georges Abi-Saab

The present study of Claudie Barrat deals with a highly topical phenomenon, namely the proliferation of « humanitarian actors » on war or war-like theatres, since the beginning of the 1990’s; a phenomenon that raises a host of challenging legal and practical questions.

The interest and importance of the subject comes from the conjunction of the two terms in the title: “International humanitarian law” and “non-governmental organizations”.

Starting with the first, one has to recall that the involvement of third parties in the implementation of the modern law of war, or the jus in bello as it was traditionally called[1], that started to be codified lato sensu in the second half of the 19th century, has been discreet and progressive.

Thus, the first Geneva “Convention on the Amelioration of the Condition of the Wounded in Armies in the Field” of 1864 limits itself to providing for the “neutrality”, i.e. the immunity or inviolability of ambulances and military hospitals and medical personnel, as well as the “inhabitants” who tend the wounded, and establishing the red cross on white ground (the reverse of the swiss flag) as distinctive sign. The Convention did not even mention the Geneva “Committee of Five” (which was later to become the “International Committee of the Red Cross), whose initiative was at the basis of the convening of the diplomatic Conference that adopted the Convention; nor the national committees to be created under its auspices precisely to inter alia provide relief in time of war and tend to the wounded and the sick in the battlefield.

A role for third parties in implementing international humanitarian law appears in later Conventions. First via the institution of “protecting powers”; an institution of diplomatic law, which functioned well on that basis during the First World War, through visits to prisoner of war camps to monitor the proper application of the Hague Convention and Rules of 1907 in those camps. At the same time, the ICRC started to exercise, perhaps unconsciously, what came to be known later as its “right of initiative”, by offering to the belligerents to visit as well the prisoners of war camps, subject of course to the consent of the detaining Powers.

The role of third parties originated thus in practice before it was recognized and codified first in the Prisoners of war Convention of 1929, and later, on a much larger scale, in the 1949 Conventions. These Conventions, adopted in the aftermath of the Second World War, operated a quantum leap in the protection of war victims, by perfecting and extending it, in the new Fourth Convention, to civilian populations not only in occupied territories (as the Hague Convention and Rules), but also throughout the territories of the belligerent Parties; as well as, via common article 3, to non-international armed conflicts. They also purported to tighten the mechanisms of implementation, by elaborating and specifying the role of the protecting power, the ICRC, as well as other entities which can undertake specific tasks, such as the prisoners of war relief societies.

Witness to this expansion of the codified role of third parties is the inventory that Claudie Barrat undertakes of a score of entities expressly mentioned in the diverse international humanitarian law treaaaties, detailing their legal status under these instruments in terms of mandate, rights, obligations and limitations; that which constitutes a very useful contribution in itself.

The identification of these entities does not pose problem when they are designated by their proper name such as the ICRC, or by their category when it is a narrow and easily recognizable one such as civil defense organizations. But the 1949 Geneva Conventions introduced in addition to these, as possible providers of humanitarian services, certain highly generic categories such as the “impartial humanitarian body” that is mentioned in Common article 3 (with the ICRC as an exampler) that “may offer its services to the Parties” in a non-international armed conflict; and “any… humanitarian organization” that can exercise the “right of initiative”, the same as the ICRC, according to Common article 9. The classification of an entity under one of these latter categories can be highly controversial.

This brings me to the second term of the title “non-governmental organizations”, and the legal questions it raises; a term that appeared for the first time in an international legal instrument in 1945 (article 71 of the UN Charter), but the concept remains elusive, lacking a generally accepted definition. It raises a host of interesting legal questions : what are the non-governmental organizations qualified to provide humanitarian services under international humanitarian law, and with what status, rights and obligations?

In the second half of her study, Claudie Barrat undertakes a series of interesting legal analyses to answer these questions. Starting with the status of non-governmental organizations in international law, she compares what she calls the “traditional approach” of legal personality or subjectivity with the “modern” one of effective “participation” (person or subject v. participant) in the international legal system; opting for the latter.

Similarly, having examined the treaty regulation of the role of third parties in the first part of her study, she puts the emphasis in the second part on the rights and obligations of non-governmental organizations under customary international humanitarian law; adopting in so doing a rather expansive view. But custom and treaty are inextricably intermingled in this regard, for most of custom here, as witnessed by the recent substantial study of the ICRC on the subject, is merely the extension of the protections provided by the treaties in international armed conflicts to non-international armed conflicts.

Whether one agrees with the analyses and choices of the author in this second part or not, the study provides the reader with all the primary materials and the doctrinal positions necessary to reach his or her own conclusions on these important issues.

Moreover, beyond the scholarly contribution of the study which fills an important gap in legal literature, Claudie Barrat seeks a more practical objective she reveals at the beginning of her introduction. Drawing on her valuable field experience with NGOs, UNRWA and the UNHCR, in the Middle East and elsewhere, she aims, by this scholarly study, to incite the non-governmental organizations to base their advocacy efforts on solid international humanitarian law foundations rather than seeking to occupy a supposedly legally uncharted free space.

For this and for the scientific enrichment it procures, Claudie Barrat’s study has put us all in her debt.

Georges Abi-Saab
Honorary Professor of International Law
Graduate Institute of International and Development Studies       


[1] The current denomination, international humanitarian law, attributed to Jean Pictet, appeared and ended up prevailing after the adoption of the four 1949 Geneva Conventions. 
                      


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