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ANA POLAK PETRIČ CYIL 5 ȍ2014Ȏ
[...] The authorities responsible for safeguarding the population in the whole of the
territory of the State cannot refuse such relief without good grounds.” 68
The commentary to the Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I) contains a similar statement, noting that Parties concerned
do not have “absolute and unlimited freedom to refuse their agreement to relief actions.
a Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious
ones.” 69 This fact must be treated in conjunction with the prohibition of starvation of
civilians as a method of warfare and consequently with article 8 (2) (b) (xxv) of the
Rome Statute of the International Criminal Court, which includes in the list of war
crimes: “[i]ntentionally using starvation of civilians as a method of warfare by depriving
them of objects indispensable to their survival, including wilfully impeding relief supplies
as provided for under the Geneva Conventions.” 70 This provision specifically stigmatizes
as a war crime a deliberate denial of humanitarian assistance in breach of the Geneva
Conventions. By also taking into account the practice of the international community
it can be confirmed that an obligation to accept humanitarian assistance in the strict
sense is established both for occupied and other territory. Agreement of the parties
concerned remains a mandatory precondition, but an unjustified denial of consent
constitutes a violation of international law.71
The right to humanitarian assistance is by no means a threat to or in conflict
with State sovereignty.
Although the principle of State sovereignty remains a fundamental principle
of international law and international order, it may not, together with corollary
nonintervention, per se imply the non-existence of the right to humanitarian assistance.
Today sovereign authority is by no means absolute. Ever evolving international law has
set many constraints on the behaviour of States, and the defence of State sovereignty,
even by its strongest supporters, does not include any claim of the unlimited power
of a State to do what it wants to its own people.72 When it comes to the life, health
and bodily integrity of the individual person, the areas of law such as international
minimum standards, humanitarian law and human rights come into play.73
68 Sandoz Y., et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, International Committee of the Red Cross, Geneva, 1987, p. 1479.
69 Ibid., p. 819.
70 Rome Statute of the International Criminal Court, available at:
romefra.htm
71 Spieker, H., The Right to Give and Receive Humanitarian Assistance, in: Heintze, H.-J. and Zwitter, A.
(eds.), International Law and Humanitarian Assistance: a Crosscut Through Legal Issues Pertaining to
Humanitarianism, Springer-Verlag Berlin, Heidelberg, 2011, p. 28.
72 The Responsibility to Protect, Report of the International Commission on Intervention and State
Sovereignty, Ottawa, 2001, p. 8.
73 ILC, Third report on the protection of persons in the event of disasters by Special Rapporteur, UN Doc
A/CN.4/629, para. 75.