Françoise Hampson University of Essex
There is an interesting connection between the issue of evacuation and the issue of assis-tance. Looking at evacuation, first, in an international armed conflict, there are extremely limited treaty provisions on evacuation from besieged areas: there is a provision in Article 15 of the First 1949 Geneva Convention that is limited to the wounded and the sick, which states that local arrangements ‘may’ be concluded for their removal from besieged areas, and also very interestingly, for the passage of religious and medical personnel and equipment to the area. This provision thus addresses movement both ways. It is generally admitted that the Second 1949 Geneva Convention mirrors very closely the First 1949 Geneva Convention. But Article 18 of the Second 1949 Geneva Convention is much more constraining: it applies to the same groups but, whenever the circumstances permit, it requires that the Parties to the conflict ‘shall’ conclude local arrangements for the removal of the wounded and sick ‘by sea’.
This Article is thus only relevant where the besieged town has ports. Article 17 of the Fourth 1949 Geneva Convention does broaden the category of people to be evacuated, but it will not surprise you to learn that even if it covers the wounded and sick, the infirm, aged persons, children, and maternity cases, it still does not cover the entire civilian population. And even then, Article 17 requires that the Parties to the conflict ‘shall endeavour’ to conclude local agreements – this is not a constraining obligation. And so far, there is no provision addressing the totality of the civilian population.
Now, we need to understand what is going on at the practical level. It is possible that the besieged forces may want to prevent the civilians from leaving, for various reasons. Notably, because of the proportionality equation, the besieged forces may think that it will help them to make it more difficult for the besieging forces to target legitimate military objectives in the besieged city. For example, it was alleged that the Tamil Tigers, at the end of the conflict in Sri Lanka, actually prevented civilian Sri Lankans from leaving the area that they were fighting in.
The besieging forces may also be torn between two options because, on the one hand, if they evacuate the civilian population, then there is less of a proportionality problem if they carry on fighting because the collateral casualties are likely to be lower. But on the other hand, they may want to leave them where they are because that complicates the life of the besieged forces. This is why I can understand, leaving the law aside, that the parties to the conflict are not clear as to where their benefit lies in terms of evacuation.
Additional Protocol I has nothing specific on evacuation, except a provision on children, which is not relevant here. However, I do not think that this issue is unaddressed because evacuation could clearly be regarded as a possible precaution in attack – if you are in a posi-tion to evacuate civilians. However, it is not explicitly referred to in Article 57 of Addiposi-tional Protocol I. As far as the besieged forces are concerned, Article 58 of Additional Protocol I does not make an express reference to evacuation but it does require the Parties to the conflict to take other necessary precautions to protect civilians against the dangers resulting from military operations. Evacuation could be considered as another measure that could fall within the scope of Article 58. It should be also remembered that if some civilians leave, in whatever way negotiated, the attacking force cannot assume there are no civilians left. They have to take the situation as it is, as there are all sorts of reasons why people might not have left.
Another interesting point here: there is an express provision on forced movement in Additional Protocol II for non-international armed conflicts. Normally, if anything is actually contained in Additional Protocol II, you would expect some equivalent provision in Additional Protocol I.
The principal focus in Article 17 of Additional Protocol II is actually to prevent forced move-ment, which is a human rights concern. However, in our context, perhaps the most important element in Article 17 is the qualification: it provides that the displacement of the civilian population should not be ordered unless the security of civilians is involved or imperative military reasons so demand. We can imagine that it would be possible for the besieged party to order civilians to leave the town – if there is an agreement with the other side – and invoke imperative reasons of security, whether the civilians are willing to go or not. But it is also important to mention that just because the besieged force might want them to leave, they still need to make some kind of agreement with the besieging force. In the context of siege, this is something that we will keep coming across, because in practice, each party may have the same obligations, but in any particular incident, they do not actually need to cooperate. So if you are trying to evacuate civilians from a besieged town, the besiegers and the besieged have to reach some kind of accommodation, because if only one Party backs the evacuation, it will be thwarted by the other Party. This will be particularly challenging if you want these two par-ties to work together, as they have totally different military interests in the siege operation.
Turning to the issue of assistance, I am not dealing either with starvation, nor the prohibition on the destruction of foodstuffs. If the besieging forces are not destroying anything but only do not allow food in, they are not violating Article 54 of Additional Protocol I – unless it is done with the objective of starving the population. What are the provisions on the delivery of assistance and relief, or anything essential to the survival of the civilian population, including medical supplies? In the context of an international armed conflict, the key provision is Article 70 of Additional Protocol I. This Article is worded in a very peculiar way: it says that if there
are civilians in need, relief actions ‘shall’ be undertaken, ‘subject to the agreement of the Par-ties concerned’ on such relief actions. Following a study conjointly carried out by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the University of Oxford on this issue of consent, there seems to be a general consensus that the State cannot arbitrarily withhold consent to the operation as a whole. But this raises two questions: what is ‘arbitrary’ and what are the consequences of an arbitrary withholding of consent?
In the context of a non-international armed conflict, the key provision is Article 18 of Ad-ditional Protocol II, if applicable. Again, if the civilian population is suffering undue hardship owing to a lack of supplies essential for its survival, relief actions ‘shall be undertaken subject to the consent of the High Contracting Party concerned’. The difference with this provision of Additional Protocol II is that the only Party whose consent is necessary, is ‘the High Contract-ing Party concerned’. First of all, in practice, if you want to deliver humanitarian assistance, whatever the law says, you need either the consent or the acquiescence of any party that is in control of any part of the territory you have to cross. In a non-international armed conflict, whilst the only consent required is that of the State, in practice, you are also going to need the consent of the armed non-state actors if you are going on their territory. However, how does it work if you can reach the civilian population without going through government-held territories, for example, delivering relief in Syria from Turkey? In that situation, Additional Protocol II says that you need the consent of the High Contracting Party concerned, i.e.
consent from the Syrian authorities. In my view, if you do not have the consent of the State, then it does not change the nature of the humanitarian assistance, as it remains a civilian
‘operation’ with civilian personnel dealing with it. This is why, if the State were to attack that civilian personnel then it would be a violation of IHL. The only thing that the State could do is to bring civil proceedings for unlawful entry into the State. Having said that, this would jeopardise all the State’s operations on the other side and there would be a real difficulty with effectively guaranteeing that the people get humanitarian assistance. I wonder whether it might be possible to link evacuation and assistance. Would there be any advantage in try-ing to get agreement on the followtry-ing propositions: if a party to an armed conflict denies evacuation, it must allow effective relief, and vice versa: if it denies effective relief, it must allow evacuation. In my opinion, that would not solve the problem, because the two parties may reach different conclusions: for example, the besieging forces might refuse to allow hu-manitarian assistance because it could be used by the military on the other side, but might allow evacuation, whereas, the besieged forces might allow humanitarian assistance but not evacuation. However, if both parties are in good faith, both assistance and evacuation could be mixed: if one Party rejects evacuation, but allows assistance, and vice versa then, in some circumstances, using this balance between assistance and evacuation might help in practice.
Sean Watts Creighton University
With respect to assistance, I very much share Françoise’s frustration with the language of Ad-ditional Protocol I. I have in my mind other provisions where things are said in a more direct way and cause less confusion. In Article 70 of Additional Protocol I, the reader sees what they want to see. With respect to evacuation, this is a curious provision, although not for the same reason as Article 70 of Additional Protocol I: if the Fourth 1949 Geneva Convention is applicable to the whole of the civilian population, Article 17 narrows the scope of application to very specific vulnerable populations. But in my opinion, there is a logic to this provision:
evacuation could be an opportunity for the besieged force to sneak some persons out, particu-larly high-value targets or symbolic leaders and people of tactical interest. One final point:
I particularly like the words said by Françoise Hampson about this relationship between as-sistance and evacuation and I might add that there is an advantage to the very broad applica-tion of Article 54 of Addiapplica-tional Protocol I on the prohibiapplica-tion of starvaapplica-tion. In my opinion, the incentive to permit evacuation rises significantly as well. So, there is an important interaction between the incentives that arise from either adopting or rejecting any of these provisions that deal with evacuation and assistance.