The UN Secretary-General has identified enhancing humanitarian access as one of the five core challenges to the protection of civilians in armed conflict. In recent years considerable attention has been devoted to identifying and mapping a wide range of practical constraints with respect to humanitarian operations and attempting to find ways of overcoming—or at least mitigating—their effect at field level. Less attention has been devoted to the legal framework regulating humanitarian assistance—including, in particular, the essential starting point of humanitarian relief operations: the requirement of consent thereto.
After briefly outlining the rules of international humanitarian law (IHL) regulating humanitarian assistance, the present article focuses on the question of what constitutes arbitrary withholding of consent to humanitarian relief operations. This focus is warranted in the light of the increasing recognition by the international community that arbitrary denial of humanitarian access amounts to a violation of IHL. In its response to the conflict in Syria, the United Nations Security Council, in a presidential statement adopted in October 2013, condemned the denial by parties to the conflict of humanitarian access, and recalled “that arbitrarily depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international humanitarian law.” A few months later, in Resolution 2139 of February 21, 2014, the Council “recall[ed] that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, can constitute a violation of international
humanitarian law.” The Council made similar statements in 2015 in dealing with the situation in Yemen. Likewise, the UN General Assembly, the UN Human Rights Council and the UN Human Rights Committee have all addressed the issue of the legality of obstructions to humanitarian access in Syria, South Sudan and Sudan from the perspective of “arbitrary denial” of access.
However, the question of what would constitute arbitrary reasons for withholding consent to humanitarian relief operations has not been explored in any detailed manner either in the literature nor, indeed, in practice. As the UN Secretary-General noted in his 2013 Report on the Protection of Civilians, “it is generally accepted that . . . consent [to relief operations] must not be arbitrarily withheld. . . . This area requires further analysis and development in order to ensure that the law has meaning for those who suffer beyond the reach of assistance.”
This article responds to that call for more detailed consideration of the issue.
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