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persons, objects, and activities
Article 4(2)(b) of Additional Protocol II apply ‘at any time and in any place whatsoever’. The International Group of Experts therefore agreed that this Rule is not limited in application to occupied territories.
SECTION 12:
HUMANITARIAN ASSISTANCE
Rule 86 – Humanitarian assistance Cyber operations shall not be designed or conducted to interfere unduly with impartial efforts to provide humanitarian assistance. 1. This Rule is based on Articles 23 and 59 of Geneva Convention IV and Articles 69 and 70 of Additional Protocol I. The Rule applies in international armed conflict and is customary in nature.124 2. The International Group of Experts did not achieve consensus on this Rule’s application in non-international armed conflict. Some Experts argued it is inapplicable to such conflicts, except as treaty law for States Party to Additional Protocol II. Others took the position that the Rule is not only encompassed in Article 18(2) of Additional Protocol II, but also reflects customary international law for States not Party to that instrument.125 A number of the Experts adopting the latter view emphasized, however, that delivery of humanitarian assistance requires the receiving State’s consent.126 With regard to consent, these Experts were split. Some took the position that such consent may not be withheld unreasonably,127 while others argued that that the provision of humanitarian assistance is entirely at the discretion of the receiving State.128 124
125
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AMW Manual, Rules 102(a), (b) and accompanying commentary. See also Rome Statute, Art. 8(2)(b)(iii). Rome Statute, Art. 8.2(e)(iii); AMW Manual, commentary accompanying Rule 102(a)– (b); ICRC Customary IHL Study, Rules 31, 32. The present rule should be distinguished as oriented toward State action with respect to, tolerance of, and support for humanitarian assistance efforts, rather than the protection of humanitarian assistance objects. The International Group of Experts considered the present rule better adapted to the cyber context. See also UK Manual, para. 15.54; NIAC Manual, para. 5.1. Additional Protocol II, Art. 18(2). See also UK Manual, para. 15.54. UK Manual at 409, n. 129; AMW Manual, commentary accompanying Rule 100(a). This position can only be taken by States that are not Party to Additional Protocol II or by Parties thereto during a non-international armed conflict to which the treaty does not apply. ICRC Additional Protocols Commentary, para. 4885, explains that Art. 18(2) is not subject to unbridled discretion.