Cross-posted from EJIL: Talk!
As many current conflicts across the globe demonstrate, humanitarian access is a central challenge to the protection of civilians in armed conflict. Parties to conflict often impede the delivery of much needed humanitarian relief supplies exacerbating hunger, disease and want. However, insufficient attention appears to have been paid to the legal framework that applies to the provision of humanitarian relief in armed conflict. In his 2013 Report on the Protection of Civilians in armed conflict the Secretary-General instructed (at para. 80) United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to analyse one aspect of the law regulating humanitarian relief operations: the issue of arbitrary withholding of consent and the consequences thereof. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations to conduct expert consultations to examine the rules and the options for providing guidance. We were honoured to lead this process of consultation resulting in the elaboration and drafting of the Guidance.
At the first meeting the experts unanimously agreed that it would not be possible nor, indeed, helpful to focus exclusively on the question of arbitrary withholding of consent. That element of the rules regulating humanitarian relief operations had to be put into its proper context. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict tries to do precisely that. It presents in sequential order the rules regulating key steps of humanitarian relief operations. It consists of a narrative commentary setting out the law and Conclusions presenting the key elements of the rules. The Guidance seeks to reflect existing law and to clarify areas of uncertainty. Where the law is unclear or the experts expressed different views on particular issues, the narrative text of the Guidance presents the range of interpretations. Each Conclusion does not necessarily reflect the unanimous view of the experts consulted. In addition to setting out the law, the document also aims to provide some practical guidance as to how some of the legal obligations identified may be implemented by the relevant duty holders.
This post highlights four central questions addressed in the Guidance: (i) whose consent is required for the conduct of humanitarian relief operations in non-international armed conflicts? (ii) what amounts to arbitrary withholding of consent? (iii) what are the key elements of the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief operations? and (iv) what the are consequences of unlawful impeding of humanitarian relief operations?
Whose consent is required in non-international armed conflict?
It is uncontested that consent is required before offers to conduct humanitarian relief operations may actually be implemented. The requirement of consent is explicit in both Article 70(1) of Additional Protocol I 1977 (AP I) (which provides that such operations “shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”) and Article 18(2) of AP II (such operations “shall be undertaken subject to the consent of the High Contracting Party concerned”). What is less clear is whose consent is required in non-international armed conflicts? In particular, it is unclear whether, in a non-international armed conflict, the consent of the state is required for operations to bring humanitarian assistance to civilians in areas under the effective control of organised armed groups that can be reached without passing through territory under the state’s effective control – so called “cross-border operations”. This issue is dealt with in Section D of the Oxford Guidance.
Two treaty provisions are relevant. Common Article 3(2) of the 1949 Geneva Conventions (GCs) and Article 18(2) of Additional Protocol II 1977 (AP II). Common Article 3(2) GCs provides that an ‘impartial humanitarian body … may offer its services to the Parties to the conflict’. The provision is silent, however, as to whose consent is required. Some interpret Common Article 3(2) GCs as implicitly allowing humanitarian relief operations to be conducted if the party to which an offer is made, be it a state or an organised armed group, accepts it, regardless of the position adopted by its opponent. On this view, if the humanitarian relief operations do not transit through territory under the state’s effective control, its consent is not required.
Others have taken the view that the silence in Common Article 3(2) GCs with regard to consent cannot be interpreted in this manner, particularly in view of the significant infringement of territorial sovereignty that humanitarian relief operations conducted in its territory without a state’s consent would entail.
Article 18(2) AP II is more explicit on this issue, requiring the consent of ‘the High Contracting Party concerned’. While this appears to be a clear reference to the state party to a non-international armed conflict, it may be suggested that the state party to a non-international armed conflict is not “concerned” by humanitarian relief operations intended for civilians in territory under the effective control of an organised armed group. Consequently, its consent is required only if the relief operations must transit through territory under its effective control. On this view, if the territory under the effective control of an organised armed group can be reached from another country directly, the state’s consent is not required.
The majority of the experts were not persuaded by this interpretation of Article 18(2) AP II. First, the suggestion that a state is not ‘concerned’ by humanitarian relief operations taking place on its territory, even if it is in areas beyond its effective control, appears contrary to basic considerations of territorial sovereignty. Second, this interpretation would suggest that there may be circumstances where no High Contracting Party is concerned by a humanitarian relief operation, making the express reference to the consent of ‘the’ High Contracting Party in Article 18(2) AP II redundant.
In light of the silence of Common Article 3(2) GCs and of the specific reference to ‘the High Contracting Party’ in Article 18(2) AP II, the Oxford Guidance adopted a position that gave due weight to general principles of international law relating to a state’s territorial sovereignty but also to its responsibility towards the civilian population. The consent of the state in whose territory the humanitarian relief operations are intended to be conducted is always required. This state will, however, have a more limited range of grounds for withholding consent where relief is intended for civilians in territory under the effective control of organised armed groups.
Arbitrary withholding of consent
Despite the apparently absolute nature of the requirement that consent be obtained, it has been accepted that such consent may not be withheld arbitrarily. This principle prohibiting arbitrary withholding of consent is derived from (1) the need to provide an effective interpretation of the relevant treaty texts, which gives effect to all aspects of those provisions and does not render parts of them redundant; (2) the intention of those who negotiated the Additional Protocols, as reflected in the drafting history of the provisions; and (3) practice subsequent to the adoption of the Protocols. In other words, the principle prohibiting arbitrary withholding of consent to humanitarian relief operations, where the preliminary conditions for such operations to be undertaken are met, derives from the interpretation of the relevant treaty texts which best accords with Arts 31 & 32 of the Vienna Convention on the Law of Treaties dealing with treaty interpretation.
Although there is widespread acceptance of the principle that consent to humanitarian relief operations must not be arbitrarily withheld, (see for example the ICRC’s 2016 Commentary to Art. 3 the First Geneva Convention, paras. 832-839 & the Institut de Droit International’s 2003 Resolution on Humanitarian Assistance, Art. VIII) there is little clarity as to what constitutes arbitrary withholding of consent. There is no definition or guidance in any treaty and, to date, the precise meaning of the concept has not been addressed by any international or national tribunal, human rights mechanism or fact-finding body.
As we explain more fully in an article that has just been published [“Arbitrary Witholding of Consent to Humanitarian Relief Operations in Armed Conflict”, 92 Int’l Law Studies 383 (2016)], the notion of arbitrariness has a wide meaning in international law. While there is no single or all-encompassing definition, international humanitarian law, international human rights law and general principles of public international law provide guidance on the type of conduct that would justify the conclusion that an actor is acting arbitrarily in withholding of consent to humanitarian relief operations.
The Oxford Guidance, in its Section E, identifies three ‘headings’ of arbitrariness. Consent is withheld arbitrarily if:
(i) it is withheld in circumstances that result in the violation by a state of its obligations under international law with respect to the civilian population in question; or
(ii) the withholding of consent violates the principles of necessity and proportionality; or
(iii) consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate.
The legal bases for these categories are set out in Section E of the Oxford Guidance and in greater depth in the recent International Law Studies article. Examples of withholding of consent that would violate a party’s other obligations under international law and thus fall into the first category would include:
- Withholding consent in situations where the civilian population is where the civilian population is inadequately supplied and the state intends to cause, contribute to, or perpetuate starvation. This would violate the prohibition on starvation of the civilian population as a method of warfare [See Art. 54 API and Art. 14 APII].
- Withholding consent to medical relief operations including on the ground that medical supplies and equipment could be used to treat wounded enemy combatants. The wounded and sick – including enemy combatants – must receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. No distinction may be made on any grounds other than medical ones. [See Art. 10 API & Art. 7 APII].
- Selective withholding of consent to humanitarian relief operations with the intent or effect of discriminating against a particular group or section of the population. This would violate the prohibition on discrimination set out inter alia in Common Article 3 GCs; Article 75(1) AP I; Article 4(2) AP II; Articles 2(1) and 26 of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) International Covenant on Economic and Social Rights (ICESCR).
- Withholding of consent to humanitarian relief operations that violates fundamental human rights as applicable in armed conflict, most notably the rights to bodily integrity (the right to life, prohibition of torture, cruel, inhuman or degrading treatment) or prevents the satisfaction of the minimum core of relevant economic, cultural and social rights, such as the rights to an adequate standard of living, including food and water, and to health and medical services.
Even in situations where consent to relief operations is withheld for a valid reason, and not contrary to a legal obligation under the first category above, doing so will nonetheless be arbitrary if it exceeds what is necessary in the circumstances, and thus is disproportionate. This is the second category of arbitrariness set out above. Limitations in terms of time, duration, location, and affected goods and services must not go beyond what is absolutely necessary to achieve the legitimate aim.
The third category of arbitrariness focuses on the manner or process by which consent is withheld. Consent is also withheld arbitrarily if it is withheld in a manner that is unreasonable, or that may lead to injustice or to lack of predictability, or that is otherwise inappropriate. A possible example would be a total failure to provide reasons for withholding consent. This would give rise to a lack of predictability and would make it impossible to assess whether there are valid reasons underlying the withholding of consent.
The obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment and personnel
Once consent has been granted to offers to undertake humanitarian relief, parties to an armed conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel throughout the territory under their effective control. While a number of recent conflicts have caused attention to be focused on the issue of initial consent to conduct humanitarian relief operations, however in the majority of cases it is at this stage that problems tend to arise. States have agreed to relief operations but then fail to do what is necessary for them to be conducted in a rapid and unimpeded manner. Apart from circumstances where specific conduct is required, the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel may be discharged in a variety of ways, leaving parties discretion in its implementation. In its Section F, the Oxford Guidance sets out examples of how the obligation may be implemented in practice.
While parties must allow and facilitate rapid and unimpeded passage, they are, however, entitled to prescribe technical arrangements for such passage. Frequently reservations that parties may have about agreeing to humanitarian relief operations could be addressed by appropriate measures of control. Those measures may allow the parties to satisfy themselves that relief consignments are exclusively humanitarian, or that relief convoys will not be endangered or hamper military operations, or that humanitarian supplies and equipment meet minimum health and safety standards.
Such administrative procedures and formalities and other technical arrangements must be applied in good faith and their nature, extent, and impact must not prevent the rapid delivery of humanitarian relief in a principled manner. This means that the imposition or effect of such arrangements must not arbitrary within the meaning set out above.
In analysing whether impediments to humanitarian relief operations, including the imposition or effect of technical arrangements, are such as to amount to a violation of the obligation to allow and facilitate the rapid and unimpeded passage of relief supplies, equipment and personnel, the focus should not be on the bilateral relationship between the party seeking to conduct relief operations and the party impeding such passage. Rather, the key consideration should be the outstanding needs of the civilian population. In, other words, it is insufficient that the activities of a particular actor have been impeded. Instead, it is the impact on the civilian population, or segments thereof, of the impediments on all those authorised to operate that must be considered.
While it is states party to an armed conflict that are most likely to be in a position to take the more formal measures set out below, organised armed groups are under the same obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel by taking all appropriate measures.
Consequences of unlawful impeding of humanitarian relief operations
The final section of the Oxford Guidance (Section I) deals with the responsibility under international law of the party (or persons) unlawfully impeding humanitarian relief operations, as well as the consequences of such unlawful conduct for those seeking to conduct humanitarian relief operations. Perhaps the most controversial aspect of the latter question is whether unlawful impeding of humanitarian relief operations means such operations can be conducted without the consent of the relevant state. Section I (2) of the Oxford Guidance states that there is no such entitlement that arises out of the prior unlawful conduct. However, humanitarian relief operations conducted without consent will be lawful where the United Nations Security Council imposes such operations by a binding decision under the UN Charter, as the Council did with respect to Syria under Resolution 2165 (2014) & 2258 (2016). Apart from such cases, humanitarian relief operations conducted without consent will not be unlawful only in extremely limited circumstances.
For states and international organizations, conducting such operations without the consent of the territorial state would violate the latter’s territorial sovereignty and territorial integrity. The wrongfulness of such conduct by a state or international organization may, exceptionally, be precluded in extremely limited circumstances of severe need if in such circumstances they can be justified under the principle of necessity or as countermeasures under the law of state responsibility or the law relating to the responsibility of international organizations. However, such operations must not violate the prohibition of the threat or use of force or seriously impair the territorial integrity of the state on whose territory they are conducted. It should also be noted with respect to international organizations that whether they can conduct operations on the territory of a member or other state, without the latter’s consent, will also depend on the rules of the organization, including its constituent instrument [see, for example, Arts. 22(2)b of the ILC Articles on the Responsibility of International Organizations].