Legislating for humanitarian aid
by Frances Stevenson and Joanna Macrae August 2002

In February 2002, the International Development Act passed into UK law. While the main aim of the legislation is to set out the purpose and principles of development assistance, it also covers humanitarian aid, as well as other activities such as conflict reduction and peacebuilding. However, the Act does not attempt to define the specific nature and principles of humanitarian action. According to the Department for International Development (DFID), ‘any definition of humanitarian assistance in legislation would be unnecessary, and would furthermore constrain our ability to react quickly, to respond to need, to learn from the operation of humanitarian assistance programmes, and to reflect those lessons in future programmes’.

What is humanitarian aid?

There is no agreement internationally about what constitutes humanitarian assistance. Different donor governments allocate humanitarian aid funds to a wide range of different activities. In addition to life-saving activities in response to conflict and disaster, humanitarian assistance funding is used for conflict management and peacebuilding, for security, for democracy- and nation-building, for infrastructure rehabilitation, and for ‘hearts and minds’ activities in military operations. Some donors use it to support refugees on their own soil: in 2000, 38% of bilateral humanitarian assistance was spent in this way. The US government, for example, allocated $451 million of its $1.2 billion humanitarian aid budget in 2000 to supporting refugees in the US.

There is considerable unease within humanitarian organisations and agencies that official humanitarian assistance is becoming more politicised. ‘Politicisation’ in the humanitarian context is commonly understood as foreign policy objectives influencing the provision – or non-provision – of humanitarian assistance. The relationship between humanitarian assistance and politics has always been complex. Providing aid in a conflict involves engaging with political actors, and can have an impact on the course of conflict. International responses have always varied according to national interests and the strategic significance of the country or region affected. There is, however, little evidence of direct foreign ministry involvement in the allocation and management of humanitarian assistance. Most humanitarian crises tend to be off the main diplomatic map, and responsibility for humanitarian policy lies with aid ministries, who may consult with, but are not normally directed by, foreign ministries.

During the 1990s, governments and donors tried to influence belligerents by withholding funding for humanitarian aid, and by providing assistance to particular groups. These experiments proved controversial within donor administrations, parliaments and the humanitarian community more broadly. By the end of the decade, there seemed to have been a move away from attempting to use humanitarian assistance to exert leverage over conflict. In the US, for example, the independence of humanitarian assistance from direct foreign policy influence has been affirmed, at least in the State Department and the Agency for International Development. In Europe, the evolution of the Common Foreign and Security Policy has led ECHO to downplay its role in conflict management, and to assert its political independence from the EU.

Over the past five years, the policy landscape has become more complex and confused, and humanitarian assistance has become politicised in a different way. The relationship between humanitarian and political and military responses to conflict has evolved and humanitarian assistance is now often closely associated with – in some cases integrated into – military and political intervention and the human security agenda.

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Governments use the term ‘humanitarian’ to describe and justify political and military interventions, and humanitarian assistance is seen by many as part of an integrated effort to manage or resolve conflicts and build peace.

The role of donor governments as players in international humanitarian response is also changing. While they used to rely primarily on UN and NGO partners to carry out humanitarian programmes, they are now more prominent actors in their own right. Donor governments – which are sometimes also parties to the conflicts in which they behave as humanitarian actors – are now much closer to humanitarian decision-making.

Lastly, humanitarian resources are being concentrated heavily on a small number of countries that are strategically significant to those donor governments. The current system of allocating multilateral and bilateral humanitarian resources does not correlate closely with need, and is far from impartial. In 1996–99, the top five recipient countries of bilateral humanitarian aid were all political hotspots of strategic importance to the main donors (Bosnia, Serbia and Montenegro, the former Yugoslavia, Israel and Iraq). The next five (Rwanda, Sudan, Afghanistan, Angola and Indonesia) received half the total allocated to the top five ($1,388m, compared to $2,725m). In 2000, 21% of all bilateral humanitarian assistance went to south-eastern Europe – the same proportion as went to all 24 other countries that were subjects of consolidated appeals.

Would legislation help?

The lack of a clear definition of what constitutes humanitarian aid leaves humanitarian activity open to manipulation for other objectives. In this context, there are a number of reasons why it would be useful (and logical) if domestic law on international development incorporated such a definition. It would establish in law a country’s commitment to uphold international humanitarian law, and the principles of impartiality and humanity which are the cornerstones of international humanitarian law and human rights law. A legal commitment to principles of humanitarian assistance would complement an ethical foreign policy, help guarantee the independence of aid policy from national foreign policy and provide a legal base against which a government could be held accountable. It would also match the public understanding of what humanitarian aid is for, namely a tool for the relief of suffering, not a component in a political process.

The demands of working in very different conflict situations around the world mean that legally defining a single package of assistance is not feasible or desirable. Issues of context, objectives and principle are what are important. Concerning context, the Development Assistance Committee (DAC) defines a humanitarian emergency as a situation where the capacity of government, other authorities and the community is overwhelmed, so that the population cannot meet its basic needs. The objective of humanitarian assistance as laid out in international humanitarian law is to prevent and alleviate suffering, protect life and ensure respect for the human being. Regarding principles, the legitimacy of intervention by humanitarian organisations depends on them being able to act independently of governments’ interests, and this independence should be protected in law.

A clause in individual countries’ legislation on international development spelling out a commitment to the values of impartiality, humanity and independence of humanitarian action would help to safeguard the place of the humanitarian mission amid the complex and competing demands of national and international politics, and ensure that the needs and rights of people in conflicts and natural disasters are better met.

Frances Stevenson is the Coordinator of the Humanitarian Practice Network and a Research Fellow at the Humanitarian Policy Group (HPG). Joanna Macraeis HPG Coordinator.

References and further reading

This article is based on research by the Humanitarian Policy Group at ODI, available in the form of both short briefing papers and longer reports:

Joanna Macrae, International Humanitarian Action: A Review of Policy Trends, ODI Briefing Paper, April 2002. Available at http://www.odi.org.uk/briefing/bp_april02.pdf.

Joanna Macrae (ed.), The New Humanitarianisms: A Review of Trends in Global Humanitarian Action, HPG Report 11 (London: ODI, 2002). Available at http://www.odi.org.uk/hpg/papers/hpgreport11.pdf.

Joanna Macrae and Nick Leader, The Politics of Coherence: Humanitarianism and Foreign Policy in the Post-Cold War Era, HPG Briefing 1, July 2000. Available at http://www.odi.org.uk/hpg/papers/hpgbrief1.pdf.

Joanna Macrae and Nick Leader, Shifting Sands: The Search for Coherence Between Political and Humanitarian Action, HPG Report 8 (London: ODI, 2000). Available at http://www.odi.org.uk/hpg/papers/hpgreport8.pdf. See also Anna Jefferys, ‘Giving Voice to Silent Emergencies’, Humanitarian Exchange 20, March 2002.

The UK International Development Act 2002 is available at http://www.hmso.gov.uk/acts/acts2002/20020001.htm.

International Humanitarian Aid of the Swiss Confederation (Including Swiss Disaster Relief), Bill to Swiss Parliament, 1996/97, Swiss Agency for Development and Cooperation, Federal Department of Foreign Affairs, Switzerland.