Humanitarian law codified in the Geneva Conventions14 and their Protocols15 provides additional protections to the right to food for a population caught in the midst of war. Such protections – and the corresponding legal obligations of States and warring parties – cover both the right of affected civilians to receive aid and the right of humanitarian agencies to deliver it.16
Warring parties have an affirmative “duty of ensuring the food and medical supplies of the population” and also allowing humanitarian aid organizations to pursue their activities “in accordance with Red Cross principles.”17 The founding Red Cross principle is that all aid must be delivered in an impartial and neutral manner exclusively for humanitarian purposes.18 Speaking directly to the conflict in Afghanistan, the ICRC has publicly affirmed that:
The warring parties have the duty to ensure that the basic needs of the civilian population in the territory under their control are met as far as possible and to allow the passage of essential relief supplies intended for civilians. They must authorize and facilitate impartial humanitarian relief operations and ensure the safety of medical and humanitarian personnel.19
The Fourth Geneva Convention also requires a State to allow aid agencies to transport foodstuffs and other essentials to the civilians of a State even if it is in conflict with that State.20 In fact, Protocol I specifically obligates all parties to an international armed conflict to facilitate independent humanitarian operations.21
The obligation to ensure access to humanitarian aid for both the Afghan population and the agencies seeking to deliver such aid is therefore incumbent upon not only the Northern Alliance and the Taliban, but also the US and its allies in neighboring countries, which have sealed their borders, blocked the movement of people fleeing war and hunger, and impeded relief organizations seeking access to them.
13 “Government actually exercising power and control as opposed to the true and lawful [de jure] government; not lawfully entitled to recognition or supremacy but which has nevertheless supplanted or displaced the government de jure,” Black’s Law Dictionary.
14 The 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War has been ratified by both Afghanistan and the United States. http://www.unhchr.ch/html/menu3/b/92.htm .
15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), have been ratified by the vast majority of States. Provisions guaranteeing access to humanitarian aid are considered part of customary international law and therefore binding on all States regardless of ratification. http://www.icrc.org/icrceng.nsf/5845147e46836989c12561740044a4f7/ 26674b4e54f4953341256237003a3ae0?OpenDocument .
16 4th Geneva Convention Articles 23, 30, 38, 59 & 63, and Protocol I Articles 17 & 81.
17 4th Geneva Convention Articles 55 & 63.
18 See Resolution 4(g)(2) of the 26th International Conference of the Red Cross and Red Crescent. See also A/RES/43/131.
19 “Afghanistan: ICRC call on all parties to conflict to respect international humanitarian law,” ICRC communication to the press 01/47, 24 October 2001.
20 4th Geneva Convention, Article 23.
21 Geneva Conventions, Additional Protocol I, Article 81.