International law, which in this context encompasses IHRL and IHL, primarily addresses states. States have the primary responsibility under international law to respect, protect, and fulfill human rights. However, and in addition to states and their armed forces,28 international law also provides for the responsibility of non-state actors, including armed groups29 and businesses.30 By the very nature of humanitarian action and assistance, humanitarian NGO workers, also referred to as humanitarians in this document, bear a responsibility to respect human rights.31 Most notably, their proximity to and relationship with vulnerable, affected communities place them in a unique position to affect their rights in either a positive or detrimental manner.
The objective of humanitarians to alleviate suffering and protect lives is one that is primarily anchored in IHRL and IHL. The source of humanitarians’ responsibility to respect these frameworks derives from several instruments.
International humanitarian law #
IHL is the branch of international law that regulates armed conflicts.32 The law aims to prevent unnecessary human suffering and preserve the core values of human dignity by protecting those who do not, or no longer participate, in hostilities and restricting the means and methods of warfare. In doing so, the law defines permissible conduct, particularly in relation to persons affected by conflict, and seeks to regulate the conduct of belligerents. IHL also provides legal obligations regarding humanitarian assistance in armed conflict.
Humanitarian NGOs, for instance, play a fundamental role in safeguarding assistance.33 This duty of protection rests not only with the parties to the conflict, but also with the impartial humanitarian organizations active in armed conflict settings. In order to fulfill the ‘do no harm’ principle,34 humanitarian NGOs must not only consider and alleviate any adverse impacts of their interventions but should also adhere to specific IHL principles.
IHL provides that humanitarian organizations may offer their services to civilians as well as persons who are no longer engaged in the hostilities, safeguarding their lives and dignity.35 Humanitarian organizations ought to operate in line with the principle of impartiality.36 Additionally, relief action must be humanitarian in nature and must be conducted without any adverse distinction.37 Moreover, humanitarian organizations must ensure that these supplies are strictly for civilian use and not diverted to military efforts.38
International human rights law #
Under both hard and soft law instruments, humanitarian NGO workers have a responsibility to respect human rights. Pursuant to Article 5(1) of the International Covenant on Civil and Political Rights (ICCPR),39 the obligation to refrain from engaging in activities that destroy the rights and freedoms recognized in the Covenant extends to non-state actors, including individuals, groups, and organizations. This clearly sets out the responsibility of humanitarians to respect human rights and refrain from inflicting harm thereto. A number of soft law instruments, further, address the activities of NGOs, including, for example, the UN Guiding Principles on Internal Displacement,40 which identify rights relevant to the protection of persons from forced displacement and to their protection and assistance during displacement. Moreover, the Joint Background Paper by the OHCHR and UNHCR on ‘The Protection of Human Rights in Humanitarian Crises’41 identifies principal concerns relating to the protection of human rights in humanitarian responses.
A key soft law instrument in this respect is the UN Guiding Principles on Business and Human Rights (UNGPs),42 an authoritative text outlining business responsibility to respect human rights. While the UNGPs chiefly address the responsibilities of businesses, its principles are adaptable and arguably apply to humanitarian NGOs. This is due to the nature of humanitarian NGOs’ operations and processes, that in some instances mirror that of businesses.43 This is particularly reflected in their contractual relationships with businesses in delivering projects and services.44 NGOs should therefore implement HRDD across their operations and internal processes, including their procurement and contracting practices, pursuant to the UNGPs, across administrative procedures and cluster operations. NGOs should also assess the human rights impacts of their activities and act on findings,45 engage in meaningful consultations with potentially affected groups and other relevant stakeholders,46 as well as in remedial processes.47
28. State armed forces include organized armed forces, groups and units which are under a responsible command, regardless of whether the government or authority representing that party is recognized by the adverse side. See, Article 43 of Additional Protocol I.
29. See, e.g., OHCHR, Joint Statement by independent United Nations human rights experts* on human rights responsibilities of armed non-State actors (25 February 2021), available at <https://www.ohchr.org/en/press-releases/2021/02/joint-statement-independent-united-nations-human-rights-experts-human-rights>; Geneva Academy, ‘Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council’ (2016), Academy In-Brief No. 7, available at <https://www.geneva-academy.ch/joomlatools-files/docman-files/InBrief7_web.pdf>; OHCHR, Special Procedures Communication to Îlham Ehmed of AANES (12 May 2022) <https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27236>
30. See UNGPs (n 6)
31. While IHRL treaties primarily address and bind states, there is a growing recognition that non-state actors also have human rights duties. Article 5(1) of the ICCPR extends to non-state actors, including individuals, groups, and organizations the obligation to refrain from engaging in activities that destroy the rights and freedoms recognized in the Covenant. Moreover, several UN guidelines directly address humanitarian organizations. See, for example, UN Economic and Social Council ‘Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39′ (11 February 1998) UN Doc. E/CN.4/1998/53/Add.2 and UN Economic and Social Council ‘Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council’ (20 May 2002) UN Doc. E/2002/68/Add.1.
32. Armed conflicts are either international or non-international in character. The International Criminal Tribunal for the former Yugoslavia (ICTY) describes NIACs as “…protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” See, ICTY Decision on the Defence Motion for Interlocutory Appeal of Jurisdiction, Prosecutor v. Dusko Tadić (IT-94-1-AR72), Appeals Chamber, 2 Oct 1995 [70]; Common Article 2 to the four Geneva Conventions of 1949 clarifies that an international armed conflict exists where there is resort to force “…between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”
33. See, e.g., Médecins Sans Frontières, ‘The Practical Guide to Humanitarian Law’, available at <https://guide-humanitarian-law.org/content/article/3/responsibility/>
34. The ‘Do No Harm’ principle requires humanitarian organisations to be aware of the context where they operate and avoid the negative impact of their projects. For more, see CDA, Do No Harm: A Brief Introduction From CDA (2018), available at <https://www.cdacollaborative.org/wp-content/uploads/2018/01/Do-No-Harm-A-Brief-Introduction-from-CDA.pdf>
35. The International Committee of the Red Cross, Commentary on Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 2016, Article 3 [810], [820], [822]. <https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-3/commentary/2016?activeTab=#_Toc465169866>
36. “[Humanitarian] assistance must be provided according to the principle of impartiality, which requires that it be provided solely on the basis of need and in proportion to need. This reflects the wider principle of non-discrimination: that no one should be discriminated against on any grounds of status, including age, gender, race, colour, ethnicity, sexual orientation, language, religion, disability, health status, political or other opinion, national or social origin.” See, The Sphere Project, Sphere Handbook: Humanitarian Charter and Minimum Standards in Humanitarian Response (Sphere, 2018) p 30
37. See, Article 18 of Additional Protocol II and Article 70 of Additional Protocol I
38. Article 23 of the Fourth Geneva Convention of 1949; Doubts alone are not enough to deny free passage to an aid shipment. Instead, there must be strong and fact-based reasons for concern. To alleviate such concerns, a neutral intermediary, such as the International Committee of the Red, may supervise the distribution of the aid consignments. See, The International Committee of the Red Cross, Commentary on Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 1958, Article 23, p 182 <https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-23/commentary/1958?activeTab=>
39. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Article 5.
40. OCHA, Guiding Principles on Internal Displacement (2004), available at <https://www.unhcr.org/sites/default/files/legacy-pdf/43ce1cff2.pdf>
41. OHCHR and UNCHR, ‘The Protection of Human Rights in Humanitarian Crises: A Joint Background Paper by OHCHR and UNHCR’ (2013) IASC Principals, available at <https://globalprotectioncluster.org/sites/default/files/2022-12/ohchr-unhcr_joint_paper_en.pdf>
42. UNGPs (n 6).
43. Humanitarian NGOs, local or international, have been actively engaging in building IDP housing complexes in north west Syria. They were responsible for 49% of the building activities by 2022, competing with the private construction sector in the area. Information Management Unit, Housing Complexes in North-Western Syria, Assistance Coordination Unit, P. 3. (2022), available at <https://acu-sy.org/wp-content/uploads/2022/05/ACU_IMU_Housing-Complexes-in-North-Western-Syria_01_April_2022_Eng.pdf>
44. See, e.g., HRW and SLDP, ‘Guide on Human Rights-Compliant Procurement Processes in Syria’ (2022) available at <https://sldp.ngo/wp-content/uploads/2022/01/HRW-SLDP-Guide-to-Procurement-and-Risk-Assessment-Tool.pdf>
45. UNGPs (6) Principle 17.
46. Ibid, Principle 18(b).
47. Ibid, Principle 22