Humanitarian Access in Armed Conflict in IHL and Islamic Law

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Humanitarian assistance and access in armed conflict is often required in order to save lives and preserve human dignity in armed conflicts. According to the UN, more than 80 percent of humanitarian crises in the world can be attributed to armed conflicts.¹ Many armed conflicts today involve Non-State Armed Groups and as two-thirds of the armed conflicts today take place in the Muslim world² it may become useful for aid organizations to engage with these organizations in the language of Islamic law. This paper looks at the legal position regarding the provision of humanitarian aid in armed conflicts and the protection of aid workers under both International Humanitarian Law (IHL) and Islamic law.

Humanitarian Access in IHL

Under international law, states bear primary responsibility in ensuring that the basic needs of the population are provided for³ however, if states are unable to do so, as is often the case in armed conflicts, there is an obligation on all parties to allow for humanitarian access provided by others. According to Article 70 (1) of Additional Protocol I, if the basic necessities of the population are not being met then impartial relief actions are to be allowed and states are under a duty to “facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel” without discrimination as to which segment of the civilian population the relief is meant for. These humanitarian actions are required to be with the consent of the receiving state. This same duty to allow for the passage of humanitarian aid for civilians is also found in Customary International Law.⁴

There is a related and corollary duty to also ensure the freedom of movement and to assist humanitarian aid workers. This freedom can only be temporarily restricted in times of imperative military necessity.⁵ This freedom of movement of personnel is considered essential for the performance of their functions in both International and Non-International Armed Conflicts. Even though there is no direct requirement that such personnel need to be authorized, interpretation and practice show that a party to the conflict can only ensure freedom of movement and security of such personnel which it has authorized.⁶

The requirements of the consent of the receiving party and authorization of relief organizations and personnel cannot be denied on arbitrary grounds and the refusal must be for valid reasons. Whether a decision to refuse is arbitrary or not is determined on a case-to-case basis. In some circumstances such as where refusal would amount to starvation, there can be no valid reasons for refusal.⁷

Protection of Aid Workers in IHL

Aid workers engaged in armed conflicts provide for the basic needs of civilian populations without discrimination while remaining neutral and impartial towards the parties of an armed conflict. Furthermore, such personnel also include medical personnel who cater to the sick and wounded combatants of any side. As these functions do not fall in the category of using a weapon or taking direct part in hostilities they are clearly non-combatants. As civilians they are protected from being made the object of attack.⁸

In addition to the general privilege available to all civilians in armed conflict, aid workers are further protected under IHL. Customary IHL rules 31 and 32 as well as Article 71(2) of AP 1 and Article 26 of the First Geneva Convention provide that relief personnel are to be respected, assisted and protected while carrying out their mission, to the fullest extent possible. Furthermore, deliberately attacking persons or objects “involved in the provision of humanitarian access” is considered a war crime which invokes individual criminal responsibility under the Article 8(2)(b) of Rome Statute of the International Criminal Court.⁹ Similarly the Special Court of Sierra Leone convicted three militia leaders for attacks carried out against humanitarian aid workers and UN peacekeepers.¹⁰

Islam and Humanitarian Assistance

Humanitarianism and the act of helping others in distress is a fundamental principle of Islam.¹¹ There are clear instructions in primary Islamic texts to this effect such as, “Rescue prisoners, feed the hungry and look after the ill…”¹² In contrast to other belief systems humanitarianism is not just encouraged in Islam but is rather seen as an obligation and not left entirely upon the free will of its followers.¹³ It shall further be noted that this obligation to aid applies without discrimination as to whether the recipients are Muslims or Non-Muslims. For e.g., at the time of famine the Prophet [P.B.U.H] organized a humanitarian convoy to help inhabitants who at that time had not converted to Islam.¹⁴ Similarly the prophet [P.B.U.H] sent 5000 dinars to the leaders of Makkah, who were enemies of Muslims at that time, to buy wheat for the poor people of the city in a time of calamity.¹⁵

This central theme of preserving sanctity of human lives would apply in armed conflicts as well and hence refusing or hindering access to humanitarian operations would run contrary to the objective of saving lives and protecting the public good (“maslaha”). Such a prohibition would have the result of inflicting harm on innocent individuals and hence go against the Islamic maxim of “harm should not be inflicted nor reciprocated.”¹⁶

Islamic Restrictions in Warfare

Islamic law placed restrictions on warfare and its conduct long before they were recognized by international law in the form of IHL. Since the 7^th century based on the Quran and Sunnah (the primary sources of Islamic Law/shariah) Islam and Muslim jurists of all sects established principles of warfare with the aim of alleviating the sufferings of victims and protecting certain persons and objects, in addition to laying some prohibition against aggression.¹⁷

Protection of Civilians and Aid Workers

Under Islamic Law, fighting is only permitted against enemy combatants and civilians and non-combatants must not deliberately be harmed during the course of hostilities.¹⁸ This has been laid down in the Quran at 2:190 “And fight in the way of God those who fight against you and do not transgress, indeed God does not like transgressors.” According to the commands laid down by the Holy Prophet (S.A.W.) the following categories of people are afforded non-combatant immunity under Islamic law; children, women, monks, religious hermits and hired servants (usafã).¹⁹

This protection of hired servants (al-uswa) is also recognized by all Muslim jurists and in the context of armed conflicts means anyone who has been employed or is paid by the enemy to perform certain functions on the battlefield but does not directly participate in hostilities.²⁰ Aid workers and those involved in the humanitarian efforts would fall in the category of hired servants and have non-combatant immunity from being attacked during armed conflicts.

Similar to under IHL, members of these protected groups lose their non-combatant immunity once they take part in hostilities.²¹ The definition of direct participation in hostilities however is much broader in Islamic Law than in IHL.²² Classic muslim jurists have held that a woman using money to finance an enemy army would lose her non-combatant immunity, similarly an elderly person involved in planning of enemy operations would also lose their immunity.²³ Under more extreme interpretations all those associated with the war effort, even if not carrying weapons, and supporting the enemy “even by opinion, propaganda or moral support” makes them a combatant.²⁴

Islamic jurisprudence is not universal on this point however, as jurists adopt different legal philosophies and different methodologies based on their adherence to a particular school of thought.²⁵ Certain issues such as whether the functions of aid workers fall in the category of taking part in hostilities consequently fall in a grey zone because of these widely varying different interpretations. Consequently some Non-State Armed Groups justify targeting aid workers and other civilians using Islamic Law.²⁶

The role and functions of humanitarian operations are too significant and the protection of aid workers cannot be left to chance, hoping that the groups involved would respect their non-combatant status and immunity. Hence it becomes essential that they are protected by ensuring that an aman is negotiated with the parties to conflict.

Protective Status using Aman

The concept of aman translates literally to protection or safety. It is basically a contract of protection and safe-conduct granted to a Non-Muslim to enter into the Islamic State on a temporary basis for peaceful purposes such as business, education or tourism. ²⁷ Respecting promises made and fulfilling contracts is one of the essential features of Islamic law.²⁸ General aman can only be granted by the Muslim head of state and hence it needs to be sought and negotiated rather than such protection being a default position. Humanitarian aid organizations have been using this concept to ensure the protection of their workers in armed conflicts²⁹ and this ensures specific safety and protection. Once an aid organization and its workers are granted aman it not only ensures that they will not be targeted and attacked upon by the group granting it but rather, under Islamic Law it is a guarantee of protection. Hence it offers an even greater protection to aid workers than other non-combatants or civilians.

Furthermore it shall be noted that seeking aman does not create additional hurdles as the requirement of seeking consent and authorization from the receiving state already exists in IHL.

Conclusion

To conclude both IHL and Islamic law place a duty on the state involved in an armed conflict, whether as a belligerent or an occupying power, to provide for the humanitarian needs of civilian populations. Furthermore, in contrast to IHL, even though it is not a specific requirement under Islamic law to seek permission before providing humanitarian aid there is a legal and theoretical space to seek such authorization in order to ensure further safety and protection.

Lastly, both require that aid workers, medical personnel and other civilians are not targeted in hostilities. However, in Islamic law because of the wide scope of the definition of “participating in hostilities”, this protection may prove insufficient in many cases and hence the seeking of permission i.e. the negotiation of aman may be a way to mitigate against the harmful effects of such as a broad, all-encompassing definition.

Talha Riaz

Muhammad Talha Riaz is a final year BA-LLB student at Lahore University of Management Sciences. He has been the Vice President of Lums law and Politics Society and is currently part of the Lums Law Journal editorial Committee. His areas of interest include Global Governance, International Human Rights Law and Constitutional Law.