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Promoting Compliance with the Rules Regulating Humanitarian Relief Operations in Armed Conflict: Some Challenges

Published online by Cambridge University Press:  01 June 2017

Dapo Akande  and
Emanuela-Chiara Gillard
Dapo Akande
Affiliation:
Dapo Akande, Professor of Public International Law, Co-Director, Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford; Co-Director, Oxford Martin Programme on Human Rights for Future Generations, University of Oxford; Yamani Fellow, St Peter's College, Oxford. [email protected]
Emanuela-Chiara Gillard
Affiliation:
Emanuela-Chiara Gillard, Senior Research Fellow, Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford; Research Fellow, Individualization of War Project, European University Institute; Research Associate, Oxford Martin Programme on Human Rights for Future Generations, University of Oxford. [email protected]
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Abstract

In recent years, the increasingly frequent and, in certain contexts, extremely severe impediments to the provision of humanitarian assistance to civilians in need have focused attention on how to enhance compliance with the rules of international humanitarian law (IHL) that regulate humanitarian relief operations. Efforts to hold accountable parties to armed conflict and persons responsible for unlawfully impeding humanitarian relief operations face the challenge that the underlying rules give parties latitude in how to implement the central obligation to allow and facilitate the rapid and unimpeded passage of humanitarian supplies, equipment and personnel. This article outlines the rules of IHL regulating humanitarian relief operations and highlights the difficulties, in the majority of situations, of determining whether they have been violated. It then presents current endeavours to promote accountability. It concludes with some reflections on whether the threat of accountability is the most effective way of enhancing compliance with this area of IHL, at least while efforts are under way to negotiate access.

Keywords

humanitarian reliefunlawful impedimentSecurity Council roleconfidence building
Type
Articles
Information
Israel Law Review , Volume 50 , Issue 2 , July 2017 , pp. 119 - 137
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

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References

1 See, for example, Dapo Akande and Emanuela-Chiara Gillard, ‘Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict’, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), October 2016 (‘Oxford Guidance’); ‘ICRC Q&A and Lexicon on Humanitarian Access’ (2014) 96(893) International Review of the Red Cross 359Google Scholar; Swiss Federal Department of Foreign Affairs, ‘Humanitarian Access in Situations of Armed Conflict: Handbook on the Normative Framework’, 2011.

2 It should be noted that international human rights law and, in particular, the rights relating to physical integrity and to an adequate standard of life (in terms of rights to food, water and shelter, and to health) are also of relevance to humanitarian relief operations in situations of armed conflict. This article focuses exclusively on IHL.

3 See, for example, Bartels, Rogier, ‘Denying Humanitarian Access as an International Crime in Times of Non-International Armed Conflict: The Challenges to Prosecute and Some Proposals for the Future’ (2015) 48 Israel Law Review 281Google Scholar.

4 For an overview of the law in this area see, for example, ‘Oxford Guidance’ (n 1); Lattanzi, Flavia, ‘Humanitarian Assistance’ in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press 2015) 231Google Scholar; Schwendimann, Felix, ‘The Legal Framework of Humanitarian Access in Armed Conflict’ (2011) 93(844) International Review of the Red Cross 993Google Scholar; Spieker, Heike, ‘Humanitarian Assistance, Access in Armed Conflict and Occupation’ in Wolfrum, Rüdiger (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2013)Google Scholar; Stoffels, Ruth Abril, ‘Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps’ (2004) 86(855) International Review of the Red Cross 515Google Scholar.

5 This article does not address the rules of IHL regulating humanitarian relief for people deprived of their liberty in relation to an armed conflict, nor those regulating individual relief.

6 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), arts 23, 59.

7 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (AP I), arts 69–71.

8 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31, art 3; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85, art 3; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 3; GC IV (n 6) art 3 (Common Article 3); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (AP II), art 18.

9 Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005 Google Scholar, revised 2009) (ICRC Study), r 55.

10 See, for example, ‘Oxford Guidance’ (n 1) and references therein.

11 Common Article 3 (n 8); AP I (n 7) art 70(1); AP II (n 8) art 18(2).

12 For a discussion of whose consent is required in non-international armed conflicts see ‘Oxford Guidance’ (n 1) s D.

13 GC IV (n 6) art 59.

14 To date this has occurred only once, in relation to Syria: see UNSC Res 2139 (22 February 2014), UN Doc S/RES/2139, para 6; and UNSC Res 2165 (14 July 2014), UN Doc S/RES/2165, para 2. While, as a matter of law, it is only the consent of states that is required, in these resolutions the Security Council demanded that all parties to the conflict consent.

15 In relation to international armed conflicts see Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949 (International Committee of the Red Cross and Martinus Nijhoff 1987)Google Scholar (ICRC Commentary to the Additional Protocols), para 2805, and Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–77 (Official Records), Vol XII, CDDH/II/SR.87, paras 27–31. In relation to non-international armed conflicts see ICRC Commentary to the Additional Protocols, ibid para 4885, and Official Records, Vol VII, CDDH/SR.53, 156–57. See also Commentary on the First Geneva Convention (2nd edn, Cambridge University Press 2016) paras 832–43Google Scholar, and ‘Oxford Guidance’ (n 1) paras 45–47.

16 This article addresses only the obligations of parties to an armed conflict. For a discussion of the obligations of non-belligerent states, see ‘Oxford Guidance’ (n 1) s H.

17 In relation to situations of occupation powers see GC IV (n 6) arts 59 and 61; in relation to other situations of international armed conflict see AP I (n 7) art 70(2)–(4). Neither Common Article 3 (n 8) nor AP II (n 8) art 18(2) address this aspect of humanitarian relief operations, but the rules in AP I on this issue are considered customary and applicable in both international and non-international armed conflicts: ICRC Study (n 9) rr 55, 56.

18 For examples, see UNSC, Report of the Secretary-General on the Protection of Civilians in Armed Conflict (29 May 2009), UN Doc S/2009/277, Annex ‘Constraints on Humanitarian Access’; UNSC, Report of the Secretary-General on the Protection of Civilians in Armed Conflict (11 November 2010), UN Doc S/2010/579, Annex ‘Constraints on Humanitarian Access’; and Report of the Secretary-General on the Protection of Civilians in Armed Conflict (22 May 2012), UN Doc S/2012/376, Annex ‘Constraints on Humanitarian Access’.

19 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(xxv).

20 For a fuller analysis of what amounts to arbitrary withholding of consent to humanitarian relief operations see ‘Oxford Guidance’ (n 1) s E, and Akande, Dapo and Gillard, Emanuela-Chiara, ‘Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict’ (2016) 92 International Law Studies 483Google Scholar.

21 AP I (n 7) art 54(1); AP II (n 8) art 14.

22 AP I (n 7) art 10; AP II (n 8) art 7.

23 ICRC Commentary to the Additional Protocols (n 15) para 2829, commentary to art 70.

24 ibid.

25 AP I (n 7) art 70(3)(c).

26 ibid art 71(3).

27 GC IV (n 6) art 61.

28 For examples, see ‘Oxford Guidance’ (n 1) s E.

29 GC IV (n 6) art 59 and AP I (n 7) art 70(3). According to the ICRC Study (n 9) r 55 and commentary thereto, the same entitlement also exists in situations of non-international armed conflict.

30 AP I (n 7) art 70(3)(b).

31 That the ability to impose technical arrangements is subject to an overriding duty not to prevent rapid delivery of humanitarian assistance in a principled manner is evident from the fact that AP I (n 7) art 70(3)(a), providing for technical arrangements, is stipulated as applying to passage ‘in accordance with’ AP I art 70(2), containing the obligation for rapid and unimpeded passage. Furthermore, AP I art 70(1) and AP II (n 8) art 18(2) make clear that the relief action provided for must be ‘humanitarian and impartial’ and ‘conducted without any adverse distinction’.

32 Two conditions must be met for the rules of IHL relating to humanitarian relief operations to come into play. First, civilians must be inadequately provided with essential supplies and the party to the armed conflict responsible for meeting their needs must not be providing the requisite assistance. Second, the actor offering its services must be capable of carrying out relief operations that are exclusively humanitarian and impartial in character and conducted without any adverse distinction: AP I (n 7) art 70. See also ICRC Commentary to the Additional Protocols (n 15) paras 4877–83 (referring to AP II (n 8) art 18), and UN General Assembly, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (11 August 2010), UN Doc A/65/282, para 81.

33 For a recent and comprehensive analysis of relevant international criminal law see Bartels (n 3).

34 ICC Statute (n 19) art 8(2)(b)(xxv). Under the ICC Statute the war crime exists only in relation to international armed conflicts, even though the underlying prohibition on starvation of the civilian population as a method of warfare exists in both international and non-international armed conflicts. It is unclear why it was also not included in the list of war crimes in non-international armed conflicts, and it has been suggested that its omission was probably an oversight: see, for example, Bartels (n 3) 298. For a discussion of whether an equivalent war crime exists in relation to non-international armed conflicts see ‘Oxford Guidance’ (n 1) s I.1.

35 AP I (n 7) art 54(1); AP II (n 8) art 14.

36 See, for example, Bartels (n 3) 287.

37 See, for example, ICRC Commentary to the Additional Protocols (n 15) para 2089.

38 Doswald-Beck, Louise (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press 1995) art 102Google Scholar; Program on Humanitarian Policy and Conflict Research, Harvard University, HPCR Manual on International Law Applicable to Air and Missile Warfare (2009) rr 157, 158.

39 Elements of Crimes, ICC Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Session, 3–10 September 2002, ICC-ASP/1/3, art 8(2)(b)(xxv), element 2: ‘The perpetrator intended to starve civilians as a method of warfare’. On this point see also Michael Cottier and Emilia Richard, ‘Paragraph 2(b)(xxv): Starvation of Civilians as a Method of Warfare’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (3rd edn, CH Beck, Hart and Nomos 2016) 508, 518; Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2003) 364CrossRefGoogle Scholar.

40 GC IV (n 6) arts 23, 59–61; GC III (n 8) arts 72–73 address individual and collective relief for prisoners of war.

41 See, for example, ICRC Commentary to the Additional Protocols (n 15) para 2851, commentary to art 70; see also ‘Oxford Guidance’ (n 1) ss G.2, G.3.

42 Elements of Crimes (n 39) art 8(2)(b)(xxv).

43 See, for example, Bartels (n 3) 293–94.

44 Author exchanges with participants in ICC Statute negotiations.

45 See, for example, ‘Oxford Guidance’ (n 1) s E.

46 Looking beyond war crimes, the ICC Prosecutor included humanitarian relief-related violations in the charge of genocide against President Al Bashir. The Prosecutor alleged that the methods of destruction of the protected group went beyond direct killing and included ‘denial and hindrance of medical and other humanitarian assistance needed to sustain life in IDP camps’. In the same case the prosecution also alleged that the crime against humanity of extermination had been committed, inter alia, by ‘obstruction of humanitarian aid’: ICC, The Prosecutor v Al Bashir, Second Decision of the Prosecution's Application for a Warrant of Arrest, ICC-02/05-01/09, 12 July 2010, paras 34–35.

47 ICC, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, paras 111–25. That said, the war crimes of attacking persons or objects involved in a humanitarian or peacekeeping mission in ICC Statute (n 19) art 8(b)(iii) and 8(e)(iii) also raise interpretation challenges: see, for example, Pacholska, Magdalena, ‘(Il)legality of Killing Peacekeepers: The Crime of Attacking Peacekeepers in the Jurisprudence of International Criminal Tribunals’ (2015) 13 Journal of International Criminal Justice 43CrossRefGoogle Scholar.

48 UNSC Res 1844 (20 November 2008), UN Doc S/RES/1844, para 8(c).

49 UNSC Res 1857 (22 December 2008), UN Doc S/RES/1857, para 4(f).

50 UNSC Res 2196 (22 January 2015), UN Doc S/RES/2196, para 12(e).

51 UNSC Res 2206 (3 March 2015), UN Doc S/RES/2206, para 7(f).

52 UNSC Res 2216 (14 April 2015), UN Doc S/RES/2216, para 19.

53 UNSC Committee established pursuant to Resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea, ‘Narrative Summaries of Reasons for Listing’, https:// www.un.org/sc/suborg/en/sanctions/751/materials/summaries/entity/al-shabaab. The reasons for listing on this ground appear related principally to food aid diversion and kidnapping of aid workers: UNSC, Report of the Monitoring Group on Somalia pursuant to Security Council Resolution 1853 (2008) (10 March 2010), UN Doc S/2010/91, 59–67.

54 UNSC Committee established pursuant to Resolution 2127 (2013) concerning the Central African Republic, ‘Narrative Summaries of Reasons for Listing’, https:// www.un.org/sc/suborg/en/sanctions/2127/materials/summaries/individual/habib-soussou. The reasons for listing on this ground appear related principally to attacks against humanitarian workers and looting of supplies and equipment: Final Report of the Panel of Experts on the Central African Republic established pursuant to Security Council Resolution 2127 (2013) (29 October 2014), UN Doc S/2014/762, Annexes 59–61.

55 UNSC Res 1612 (26 July 2005), UN Doc S/RES/1612, para 3.

56 UNSC Res 1882 (4 August 2009), UN Doc S/RES/1882, para 3 added parties to armed conflict ‘that engage, in contravention of applicable international law, in patterns of killing and maiming of children and/or rape and other sexual violence against children, in situations of armed conflict’; UNSC Res 1998 (12 July 2011), UN Doc S/RES/1998, para 3 added parties to armed conflict ‘that engage, in contravention of applicable international law: (a) in recurrent attacks on schools and/or hospitals; [or] (b) in recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals in situations of armed conflict’; and UNSC Res 2225 (18 June 2015), UN Doc S/RES/2225, para 3 added parties to armed conflict ‘that engage, in contravention of applicable international law, in patterns of abduction of children in situations of armed conflict’.

57 Consultations with representatives of UN agencies involved in access negotiations.

58 See, for example, Payam Akhavan and others, ‘There is No Legal Barrier to UN Cross-Border Operations in Syria’, The Guardian, 28 April 2014, http://www.theguardian.com/world/2014/apr/28/no-legal-barrier-un-cross-border-syria.

59 These and other questions are addressed in Emanuela-Chiara Gillard, ‘The Law Regulating Cross-Border Relief Operations’ (2013) 95(890) International Review of the Red Cross 351.

60 On the different roles played by international law that can be invoked see Steve Ratner, ‘Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion’, EJIL: Talk!, Pt I, 10 September 2013, http://www.ejiltalk.org/beyond-courtroom-arguments-why-international-lawyers-need-to-focus-more-on-persuasion-part-i; and Pt II, 11 September 2013, http://www.ejiltalk.org/beyond-courtroom-arguments-why-international-lawyers-need-to-focus-more-on-persuasion-part-ii.

61 For a discussion of similar concerns about the impact of the timing of referrals to the ICC on ongoing peace mediation efforts see, for example, Ruben Reike, ‘Conflict Prevention and R2P’ in Alex Bellamy and Tim Dunne (eds), The Oxford Handbook of the Responsibility to Protect (Oxford University Press 2016) 581, 592; and Priscilla Hayner, ‘International Justice and the Prevention of Atrocities – Case Study: Libya: The ICC Enters During War’, European Council on Foreign Relations Background Paper, November 2013, http://www.ecfr.eu/page/-/IJP_Libya.pdf.

62 Similar concerns were raised by the convoy sent by Russia into the Eastern Ukraine in the summer of 2014: see, for example, Alex Luhn, ‘Ukraine Rebels Struggle to Reach Aid as Russian Convoy Returns Home’, The Guardian, 23 August 2014, http://www.theguardian.com/world/2014/aug/23/donetsk-ukraine-russia-vladimir-putin.

63 See, for example, the case of Somalia discussed in Kate Mackintosh and Patrick Duplat, ‘Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action’, UNOCHA and Norwegian Refugee Council, July 2013, 81, https://docs.unocha.org/sites/dms/documents/ct_study_full_report.pdf.

64 UNSC Res 2165 (n 14) para 2.

65 ibid para 3.

66 ibid para 2: the Security Council … ‘[d]ecides that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and the border crossings …’ (emphasis added).

67 UNSC Res 2216 (n 52) para 14.

68 Yemen: Joint NGO letter to Security Council, 19 October 2016, http://www.care.org/sites/default/files/documents/yemen-joint-unsc-letter.pdf.

69 Human Rights Watch, ‘Yemen: Coalition Blocking Desperately Needed Fuel – Tankers Wait Offshore as Civilians Go Without Water, Electricity’, 10 May 2015, https:// www.hrw.org/news/2015/05/10/yemen-coalition-blocking-desperately-needed-fuel; see also UNOCHA, ‘Humanitarian Coordinator for Yemen, Joahnnes van der Klaauw Statement on the Situation in Yemen, 23 April 2015’, ReliefWeb, 23 April 2015, http://reliefweb.int/report/yemen/humanitarian-coordinator-yemen-johannes-van-der-klaauw-statement-situation-yemen-23.

70 The ICRC and Médécins Sans Frontières have established their own arrangements. This is probably not based on a distrust of particular mechanisms but more a reflection of these organisations’ distinct preference for making their own arrangements, as they are more likely to be perceived as impartial and neutral.

71 The mechanism does not apply to ships operated or chartered by the UN or international humanitarian organisations. For details of the notification and clearance processes see UN Verification and Inspection Mechanism for Yemen, http://www.vimye.org.