What are the main IHL rules in relation to humanitarian access?
First, impartial humanitarian organizations (such as the ICRC) have the right to offer their services to carry out humanitarian activities – also known as the “right of initiative”. Nothing under IHL restrains the right of impartial humanitarian organizations to offer their services. Such offer of services cannot be interpreted as interference in States’ internal affairs, nor as a recognition or a support to a party to the conflict.
Second, these humanitarian activities are subject to the consent of the parties “concerned” because the proposed humanitarian activities are to be undertaken in their territory or in the areas under their effective control; but the decision to consent is not discretionary. For example, if an impartial humanitarian organization can assist civilians threatened with starvation, the party concerned is obliged to give consent. The party concerned could legitimately reject an offer of service only if there are no humanitarian needs in the area, or if the offer of service comes from an organization that does not qualify as impartial and is not humanitarian in nature.
Third, parties to an armed conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, subject to their right of control. In other words, the parties are under an obligation to cooperate and to take positive action to facilitate the tasks of relief personnel. This may include simplifying administrative formalities as much as possible to facilitate visas or other immigration issues, taxation, as well as import and export procedures, field trip approvals, and possibly privileges and immunities necessary for the humanitarian relief activities of an impartial humanitarian organization.
When it comes to the movement of humanitarian relief personnel and objects, IHL foresees an obligation of the parties to the conflict to ensure freedom of movement essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily and geographically restricted.
In occupied territories that are inadequately supplied, the Occupying Power is bound not only to accept the offer of services, but also to facilitate them by all the means at its disposal. It must also permit the free passage of relief consignments and guarantee their protection.
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