[Just Security and EJIL Talk! are co-hosting an online forum on the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, which was commissioned by the UN Office for the Coordination of Humanitarian Affairs on the request of the UN Secretary-General. See also the introduction to the forum by Dapo Akande and Manu Gillard, and the post by Rogier Bartels.]

There should be ‘a humanitarian law that will ensure that governments will not infringe humanitarian access.’These words, from a representative of the Sudan’s People Liberation Movement – North (SPLM-N), expressed his frustration over a state-centric system of norms that requires humanitarian relief operations to obtain the consent of host States to gain access to areas under the control of armed groups. His particular comment is motivated by the context of the conflict in Sudan where humanitarian access is prevented to Southern Kordofan and Blue Nile states, which remain cut off, and access to most of the Jebel Marra area in Darfur is heavily restricted. At the same time, armed non-state actors (ANSAs) are also responsible for blocking humanitarian relief operations. While there is a lack of data on the extent to which ANSAs are hampering humanitarian access, armed groups are reported to have denied access to aid organizations in Yemen, for example, or to have imposed stringent accreditation procedures in eastern Ukraine. In addition, the Aid Worker Security Database indicates most attacks against humanitarian workers in 2016 have taken place in countries where many ANSAs operate (Afghanistan, Somalia, South Sudan, Syria and Yemen). In short, there’s no denying that ANSAs are key players in this policy and legal space.

Given these realities, it makes sense to include ANSAs in discussions of the challenges faced by relief operations in contemporary armed conflicts. In that regard, both the Oxford Guidance on the Law relating to Humanitarian Relief Operations in Situations of Armed Conflicts and a study conducted by Geneva Call on the perceptions of armed non state-actors on humanitarian action have not only recounted what ANSAs have said about humanitarian access, but have also clarified how international norms on humanitarian relief operations apply in the non-international armed conflicts in which they are involved. In this short entry, in addressing the two texts, I offer a few thoughts on how certain standards proposed in the Oxford Guidance might be interpreted from an ANSA’s perspective.  

General support for humanitarian aid and its underlying principles

The Geneva Call study highlighted that the 19 ANSAs they consulted generally expressed support for international humanitarian law (IHL) and certain principles underlying humanitarian relief operations namely neutrality, impartiality and independence. Some ANSAs have issued declarations in favour of humanitarian assistance (see the Declaration of Commitment on Compliance with IHL and the Facilitation of Humanitarian Assistance by the National Coalition of Syrian Revolution and Oppositions Forces). Others have adopted formal policies regulating humanitarian aid, as, for instance, the Karen National Union (KNU) in Burma, which has established a Policy for Humanitarian Assistance on 11 June 2014. While these texts and declarations usually comply with IHL, the interpretations that some ANSA put on humanitarian principles are problematic. This is the case with regard to the type of entity that can provide humanitarian assistance. As the Oxford Guidance reminds, offers to conduct humanitarian relief operations may be made by states, international organizations or NGOs (para. 9). Some of these actors are perceived by ANSAs as not meeting the criteria of neutrality, impartiality and independence. Unsurprisingly, national aid organizations fall into that category. The SPLM-N even asserted that ‘no actors fulfill all three principles’ (Geneva Call study, p. 12). Apart from the fact that national aid organizations are said to be in some instances, ‘infiltrated by the government’ (Geneva Call study, p. 13), perhaps more worryingly, humanitarian assistance, even when provided by independent and neutral NGOs, can be perceived as partial, because, according to a specific mandate, they might target aid towards a certain population. For example, the Democratic Forces for the Liberation of Rwanda (FDLR), active in the North East of the DRC, criticized the partiality of organizations that distributed aid only to the Congolese population and excluded the Rwandan refugees (Geneva Call study, p. 13). The perception of the absence of neutrality is particularly problematic for humanitarian access, as it can justify, in the eye of an ANSA, refusal of consent to access the zones under its control.

 The issue of consent and the right to regulate

 The issue of consent, or rather the refusal to give consent to the provision of humanitarian aid, is at the heart of many humanitarian crises in contemporary armed conflicts, such as in Syria, Yemen and Ukraine and may explain the urgency to clarify and/or reiterate international law applicable to these situations. Apart from the Oxford Guidance document, one may recall the ‘Humanitarian access initiative’ developed by OCHA, the ICRC, the Swiss DFA and Conflict Dynamics, which produced a Practitioners’ Manual as well as a Legal Handbook on Humanitarian access in Armed Conflicts.

The rules on consent proposed in the Oxford Guidance document are quite clear:

D(i) If civilians are inadequately provided with essential supplies and offers have been made to conduct relief operations that are exclusively humanitarian and impartial in character and conducted without adverse distinction, such operations must be carried out subject to the consent of the state in whose territory the operations will be carried out. Such consent must not be arbitrarily withheld.

More specifically, regarding non international armed conflicts, it is stated that:

D(ii) In situations of non-international armed conflict, where a humanitarian relief operation is intended for civilians in territory under the effective control of an organised armed group, and this territory can be reached without transiting through territory under the effective control of the state party to the conflict, the consent of the state is nonetheless required, but it has a narrower range of grounds for withholding consent.

In paragraph 31 of the document, the commentary also emphasizes that: ‘Whatever the legal position, as a matter of operational practice, the agreement or acquiescence of all parties to an armed conflict to humanitarian relief operations intended for civilians in territory under their effective control or transiting through such territory will be required to conduct the operations in a safe and unimpeded manner.’ (emphasis added)

While Rule D(i) is reasonable and well-founded, a few points are warranted with regard to Rule D(ii) and its commentary. First, as noted by the Guidance document itself, one should acknowledge that other interpretations exist for Common Article 3 and Article 18 of Additional Protocol II to the Geneva Conventions, requiring the consent of the ‘high contracting party concerned’ before relief action may be undertaken. Marco Sassòli, for instance, has argued that under Common Article 3 a humanitarian body may proceed with humanitarian assistance if an ANSA has accepted it, even if the host state withheld its consent (see also in the same vein, Nishat Nishat, ‘The Right of Initiative of the ICRC and Other Impartial Bodies’, in Clapham, Gaeta and Sassòli, The 1949 Geneva Conventions, A Commentary, OUP, 2015, p. 502, para 25.) Second, while the Oxford Guidance emphasises that consent to humanitarian aid must be obtained from an ANSA for ‘operational reasons’, Françoise Bouchet-Saulnier, MSF Legal Adviser, argued that there might be a legal obligation requiring ANSA consent for humanitarian relief operations in area under their control. That said, all the ANSAs interviewed in the Geneva Call study were adamant in saying they have a right to consent and regulate humanitarian access, because ‘they see themselves as governments in waiting, or as de facto governments of the area they control’ (p. 16). In an ANSA’s view, failure to obtain consent can be a justified reason for expelling a humanitarian organization (p. 21).

More generally, experts tend to agree that it is important to consider ANSAs not only as perpetrators of IHL violations, but also as actors that can play a positive role in protection issues, if only because they are often very close to their constituencies. Many ANSA also view themselves as being responsible for the fate of the civilian population under their control (see Geneva Call study, p. 22). Despite national counter-terrorism legislation, it is crucial to encourage states and humanitarian organizations to consider ANSA, in some instances, also as partners, and not only as duty bearers in the implementation of relief operations and to take seriously statements such as the one expressed by a KNU representative: ‘Although I don’t know all the rules, I do think we should take part and fulfil our responsibilities’.

[This post is the latest in an online forum hosted by Just Security and EJIL Talk! on the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, which was commissioned by the UN Office for the Coordination of Humanitarian Affairs on the request of the UN Secretary-General.]